Appeal No. 2006-2374 Page 5
Application No. 10/164,670
combined teachings, knowledge of one of ordinary skill in the art, and the nature of
the problem to be solved as a whole would have suggested to those of ordinary
skill in the art. Id. at 987-88, 78 USPQ2d at 1336 (citing In re Kotzab, 217 F.3d
1365, 1370, 55 USPQ2d 1313 (Fed. Cir. 2000)).
These showings by the examiner are an essential part of complying with the
burden of presenting a prima facie case of obviousness. See Oetiker, 977 F.2d at
1445, 24 USPQ2d at 1444. Only if this initial burden is met does the burden of
coming forward with evidence or argument shift to the appellant. Id. at 1445, 24
USPQ2d at 1444. See also Piasecki, 745 F.2d at 1472, 223 USPQ at 788.
Obviousness is then determined on the basis of the evidence as a whole and the
relative persuasiveness of the arguments. See Oetiker, 977 F.2d at 1445, 24
USPQ2d at 1444; Piasecki, 745 F.2d at 1472, 223 USPQ at 788.
In the rejection of independent claim 25, the examiner determined that
“Noguchi discloses the claimed device except for the front and rear wall being
bonded to the gusset sidewalls adjacent the reclosable seal by diagonal seals.”
Answer, p. 3. In particular, the examiner found that Figure 1 of Noguchi shows the
bottom portions of seals 5 extending diagonally from the side edges of the front
wall downward toward the bottom of the bag. Answer, p. 5. The examiner found
that Figure 2 of Noguchi shows that when the bag is filled, it forms a substantially
flat bottom. Reply, p. 6. The examiner relies on McClintock for the teaching that
it is known in the art to bond the front and rear walls to the gusset sidewalls using
diagonal seals. The examiner found that it would have been obvious to one of
ordinary skill in the art at the time the invention was made to provide the bag of
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