Appeal 2007-0203
Application 10/139,969
The Examiner’s rejections are as follows:
1. Claims 22-27, 31, and 40 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Presby.2
2. Claims 28-30 and 32-38 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Presby in view of Sorce.
3. Claims 39 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Presby in view of Sorce and further in view of Kittell.
Rather than repeat the arguments of Appellants or the Examiner, we
refer to the Briefs and the Answer for their respective details. In this
decision, we have considered only those arguments actually made by
Appellants. Arguments which Appellants could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii) (2004).
OPINION
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 invention 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 must make the factual
2 Claims 22 and 23 were rejected under a new grounds of rejection based
solely on the disclosure of Presby (Answer 2-4). Claims 24-27, 31, and 40
were also rejected based solely on Presby (Answer 4-6).
3
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