Appeal No. 2006-2930
Application No. 10/299,198
OPINION
We have carefully considered the subject matter on appeal, the rejection
advanced by the examiner and the evidence of obviousness relied upon by the
examiner as support for the rejection. We have, likewise, reviewed and taken
into consideration, in reaching our decision, the appellant's arguments set forth in
the brief along with the examiner’s rationale in support of the rejections and
arguments in rebuttal set forth in the examiner’s answer.
It is our view, after consideration of the record before us, that the 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 set forth in the
claims on appeal. Accordingly, we affirm.
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, 61 USPQ2d at 1433-34. The examiner cannot simply
reach conclusions based on the examiner’s own understanding or experience -
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