Appeal No. 2006-2007
Application No. 09/996,225
Rather than reiterate the opposing arguments, reference is made to the briefs
and the answer for the respective positions of Appellants and the Examiner.
OPINION
The initial burden of establishing reasons for
unpatentability rests on the Examiner. In re Oetiker, 977 F.2d
1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir. 1992). The Examiner
must produce a factual basis supported by a teaching in a prior
art reference or shown to be common knowledge of unquestionable
demonstration, consistent with the holding in Graham v. John
Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966). Our
reviewing court requires this evidence in order to establish a
prima facie case. In re Piasecki, 745 F.2d 1468, 1471-72, 223
USPQ 785, 787-88 (Fed. Cir. 1984); In re Cofer, 354 F.2d 664,
668, 148 USPQ 268, 271-72 (CCPA 1966). However, “the Board must
not only assure that the requisite findings are made, based on
evidence of record, but must also explain the reasoning by which
the findings are deemed to support the agency’s conclusion.” In
re Lee, 277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir.
2002).
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