Appeal No. 2006-2406 Παγε 4
Application No. 10/745,113
Upon consideration of the record before us, we make the
determinations which follow. We note at the outset that
appellants argue the claims as a group. Accordingly, we select
claim 1 as representative of the group. By way of background, we
note that in rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966). The examiner must articulate
reasons for the examiner's decision. In re Lee, 277 F.3d 1338,
1342, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). In particular, the
examiner must show that there is a teaching, motivation, or
suggestion of a motivation to combine references relied on as
evidence of obviousness. Id. at 1343. The examiner “cannot
simply reach conclusions based on its understanding or experience
- or on its assessment of what would be basic knowledge or common
sense. Rather, the Board must point to some concrete evidence in
the record in support of these findings." In re Zurko, 258 F.3d
1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001). Thus the
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