Appeal No. 2006-1957
Application No. 10/301,394
OPINION
We have carefully considered the subject matter on appeal, the rejections 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, Appellants’ arguments set forth in the Briefs 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 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 1-50. 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 Appellants 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
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