Appeal No. 2006-1359
Application No. 10/098,417
decision, the appellant’s arguments set forth in the briefs 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 by the examiner does support the examiner’s rejection of claims 1, 2, 4, and 7-11.
Accordingly, we affirm.
We consider the obviousness of the following logical groups of claims, as presented
under separate subheadings and separately argued by the appellant [brief, pages 2-4]:
• Group I: Independent claim 1.
• Group II: Dependent claims 2, 4, and 7 stand or fall together.
• Group III: Independent claims 8-11 stand or fall together. Since appellant’s
arguments with respect to this rejection have treated these claims as a single group
which stand or fall together, we will select claim 10 as the representative claim for
this rejection because claim 10 is the broadest independent claim in this group. See
37 C.F.R. §41.37(c)(1)(vii)(2004).
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
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