Appeal 2007-1100
Application 10/384,642
Miyao US 6,466,237 B1 Oct. 15, 2002
(filed Jul. 16, 1999)
Claims 1, 2, 4-6, and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Miyao in view of Angiulo.
Rather than repeat the arguments of Appellant or the Examiner, we
refer to the Briefs and the Answers for their respective details. In this
decision, we have considered only those arguments actually made by
Appellant. Arguments which Appellant 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).
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
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
USPQ 459, 467 (1966).
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l v. Teleflex, Inc., 127 S. Ct. 1727,
82 USPQ2d 1395 (2007) explains:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it,
3
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: September 9, 2013