Ex Parte Dege et al - Page 9



            Appeal 2007-0229                                                                                 
            Application 10/968,436                                                                           
                   In rejecting claims under 35 U.S.C. § 103(a), the examiner bears the initial              
            burden of establishing a prima facie case of obviousness.  In re Oetiker, 977 F.2d               
            1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).  See also In re Piasecki, 745                 
            F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).  Only if this initial burden                
            is met does the burden of coming forward with evidence or argument shift to the                  
            appellant.  Id. at 1445, 24 USPQ2d at 1444.  See also Piasecki, 745 F.2d at 1472,                
            223 USPQ at 788.  Obviousness is then determined on the basis of the evidence as                 
            a whole and the relative persuasiveness of the arguments.  See Oetiker, 977 F.2d at              
            1445, 24 USPQ2d at 1444; Piasecki, 745 F.2d at 1472, 223 USPQ at 788.                            

                                                ANALYSIS                                                     
                A. Rejection of claims 1-2 and 13-14 under 35 U.S.C. § 102(b) as anticipated                 
                   by Davis.                                                                                 
                   The Examiner found that Davis disclosed all of the limitations of claims 1-2              
            and 13-14 “when the housing 10 is in a vertical position.” (Answer 3)  Appellants                
            argue that “simply reorienting that which is disclosed in Davis would require                    
            ignoring much of what is disclosed therein and the clear and unquestionable                      
            meaning of the description of what is illustrated” (Br. 14).  We agree with                      
            Appellants that Davis does not teach orienting the insulated food box in a vertical              
            position, because it “includes a collapsible support unit for elevating the receptacle           
            unit to a serving height at the point of use of the food box and which can be                    
            collapsed to facilitate the transport of the insulated food box to and from the point            
            of use” (Finding of Fact 1). Moreover, Davis discloses that each of the opposing                 

                                                     9                                                       



Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: September 9, 2013