Appeal No. 2006-2106 Page 3
Application No. 09/585,767
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-
18. 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 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).
With respect to the Examiner’s 35 U.S.C. § 103(a) rejection of
independent claims 1, 9, and 18 based on the combination of Raith and
Calaman, after reviewing the Examiner’s analysis (Answer, pages 3 and 4), it is
our opinion that the stated position is sufficiently reasonable that we find that the
Examiner has at least satisfied the burden of presenting a prima facie case of
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