Appeal No. 2006-1834
Application No. 09/852,253
OPINION
We have carefully considered the subject matter on appeal, the rejection advanced by the
Examiner and the evidence of obviousness relied upon by the Examiner as support for the
rejection. We have, likewise, reviewed and taken into consideration, in reaching our
decision, 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 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 recited in claims 1, 2, 7, 8, 20-23, and 25-27.
Accordingly, we affirm.
As a general proposition in an appeal involving a rejection under 35 U.S.C. § 103,
an Examiner is under a burden to make out a prima facie case of obviousness. If that
burden is met, the burden of going forward then shifts to Appellant to overcome the prima
facie case with argument and/or evidence. Obviousness is then determined on the basis
of the evidence as a whole and the relative persuasiveness of the arguments. See In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Hedges, 783
F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189
USPQ 143, 147 (CCPA 1976).
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