Ex Parte Doherty et al - Page 6

                  Appeal No.  2006-3273                                                            Page 6                   
                  Application No.  09/858,188                                                                               
                         For the foregoing reasons it is our opinion that the examiner failed to meet                       
                  his burden of providing the evidence necessary to establish a prima facie case of                         
                  obviousness.  If the examiner fails to establish a prima facie case, the rejection is                     
                  improper and will be overturned.   In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d                              
                  1596, 1598 (Fed. Cir. 1988).  Accordingly, we reverse the rejection of claims                             
                  16-19 under 35 U.S.C. § 103 as being unpatentable over Townsend.                                          



                                                       REVERSED                                                             


                                                                            )                                               
                                        Donald E. Adams   )                                                                 
                                        Administrative Patent Judge )                                                       
                                                                            )                                               
                                                                            ) BOARD OF PATENT                               
                                                                            )                                               
                                        Lora M. Green   )      APPEALS AND                                                  
                                        Administrative Patent Judge )                                                       
                                                                            )   INTERFERENCES                               
                                                                            )                                               
                                                                            )                                               
                                        Richard M. Lebovitz   )                                                             
                                        Administrative Patent Judge )                                                       



                  DEA/lbg                                                                                                   













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