Appeal No. 2006-2458
Application No. 10/147,673
In re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1316-17 (Fed. Cir.
2000). See also In re Thrift, 298 F. 3d 1357, 1363, 63 USPQ2d 2002, 2008
(Fed. Cir. 2002). These showings by the examiner are an essential part of
complying with the burden of presenting a prima facie case of obviousness.
See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). If that burden is met, the burden then shifts to the applicant 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 Id.; 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).
As per claims 1-3, 7-10 and 14:
Since appellant’s arguments with respect to the rejection of claims
1-3, 7-10 and 14 have treated these claims as a single group which stand or
fall together, we will consider independent claim 1 as the representative
claim for this rejection. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). We note
that claim 13 will be considered with claim 12 infra because claim 13
depends upon claim 12 which is argued separately by appellant [see brief,
page 7].
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