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
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