Appeal 2006-2185
Application 10/248,892
whether unexpected advantages have been demonstrated is a factual
question. In re Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed.
Cir. 1984). Moreover, it is incumbent upon Appellants to supply the factual
basis to rebut the prima facie case of obviousness established by the
Examiner. See, e.g., In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16
(CCPA 1972). The burden was on Appellants to ferret out the facts to show
the unexpected cause-and-effect relationship which Appellants desire to
show for the here-claimed subject matter. Appellants did not accomplish
this on the record before us in this appeal. See In re Heyna, 360 F.2d 222,
228, 149 USPQ 692, 697 (CCPA 1966); In re Dunn, 349 F.2d 433, 439, 146
USPQ 479, 483 (CCPA 1965).
Consequently, we remain of the opinion that the claimed subject
matter would have been obvious to one of ordinary skill in the art within the
meaning of § 103(a) in view of the prior art relied upon by the Examiner and
considered in light of Appellants’ specification evidence.
CONCLUSION
Appellants have pointed to no issues of fact or law that we
misapprehended or overlooked, which would require any change in our
previous Decision. Thus, we have granted Appellants’ Request to the extent
that we have reconsidered our decision of September 28, 2006, but we deny
the Request with respect to making any changes therein.
REHEARING DENIED
clj
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