Ex Parte Nishimura et al - Page 11



         Appeal No. 2006-2752                                                 
         Application No. 10/309,007                                           
         Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).     
         Only if this initial burden is met does the burden of coming         
         forward with evidence or argument shift to the Appellants.           
         Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444.  See also Piasecki,    
         745 F.2d at 1472, 223 USPQ at 788.  Thus, the examiner 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 examiner’s conclusion.        
         However, a suggestion, teaching, or motivation to combine the        
         relevant prior art teachings does not have to be found explicitly    
         in the prior art, as the teaching, motivation, or suggestion may     
         be implicit from the prior art as a whole, rather than expressly     
         stated in the references.  The test for an implicit showing is       
         what the 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.  In      
         re Kahn, 441 F.3d 977, 987-88, 78 USPQ2d 1329, 1336 (Fed. Cir.       
         2006) citing 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).                         
                                                                             
             An obviousness analysis commences with a review and              
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