Appeal No. 2006-1279
Application No. 10/249,005
consideration, in reaching our decision, the appellant's
arguments set forth in the brief along with the examiner’s
rationale in support of the rejections 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 not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in
claims 1-3 and 9. We reach the opposite conclusion, however,
with respect to claims 4-8. Accordingly, we affirm-in-part.
We first consider the rejection of clams 1-4 and 6-9 under
35 U.S.C. § 103(a) based on Berson and Fink. 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
4
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007