Appeal No. 2006-1978
Application No. 10/027,572
OPINION
We have carefully considered the subject matter on appeal, the rejections
advanced by the Examiner, and the evidence of anticipation and obviousness relied
upon by the Examiner as support for the rejections. We have, likewise, reviewed
and taken into consideration, in reaching our decision, Appellants’ 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 Alperovich
reference does not fully meet the invention as set forth in claim 19. We are further
of the opinion 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 recited in claims 1-5, 7-11, 13, and 15-18. We reach the opposite
conclusion with respect to the Examiner’s obviousness rejection of claims 6, 12,
and 14. Accordingly, we affirm-in-part.
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.
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