Appeal No. 2006-1026
Application No. 09/682,279
obviousness relied upon by the examiner as support for the
rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellant’s
arguments set forth in the brief along with the examiner’s
rationale in support of the rejection and arguments in rebuttal
set forth in the examiner’s answer.
It is our view, after consideration of the record before us,
that the evidence relied upon and the level of skill in the
particular art would have suggested to one of ordinary skill in
the art the obviousness of the invention as set forth in the
claims on appeal. Accordingly, we affirm.
In rejecting claims under 35 U.S.C. § 103, it is incumbent
upon the examiner to establish a factual basis to support the
legal conclusion of obviousness. See In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
examiner is expected to make the factual determinations set forth
in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966). The examiner must articulate reasons for the examiner’s
decision. In re Lee, 277 F.3d 1338, 1342, 61 USPQ2d 1430, 1434
(Fed. Cir. 2002). In particular, the examiner must show that
there is a teaching, motivation, or suggestion of a motivation to
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