Appeal 2007-0932
Application 10/058,924
McDonald in view Wang, further in view of Kuperstein. In a fourth stated
rejection as to claims 8, 18, and 22, to this latter combination of references
the Examiner again adds TIFF. The Examiner utilizes Allen alone as to
claims 14 and 23 through 36 in a fifth stated rejection. Lastly, in a sixth
stated rejection, the Examiner relies upon McDonald in view of Wang,
further in view of Allen, as to claim 41.
Rather than repeat the positions of the Appellants and the Examiner,
reference is made to the Brief and Reply Brief for the Appellants’ positions,
and to the Answer for the Examiner’s positions.
OPINION
Generally, for the reasons set forth by the Examiner in the Answer, as
expanded upon here, we sustain each of the six stated rejections of the
claims on appeal rejected under 35 U.S.C. § 103.
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
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
USPQ 459, 467 (1996). “[T]he Examiner bears the initial burden on review
of the prior art or on any other ground, of presenting a prima facie case of
unpatentability.” In re Oetiker, 977 F.3d 1443, 1445, 24 USPQ 1443, 1444
(Fed. Cir. 1992). Furthermore, “‘there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness’ . . . . [H]owever, the analysis need not seek out precise
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