Ex Parte Sato - Page 8

                Appeal 2007-1275                                                                              
                Application 09/824,248                                                                        

                                          PRINCIPLES OF LAW                                                   
                      On appeal, all timely filed evidence and properly presented argument                    
                is considered by the Board.  See In re Piasecki, 745 F.2d 1468, 1472, 223                     
                USPQ 785, 788 (Fed. Cir. 1984).                                                               
                      In the examination of a patent application, the Examiner bears the                      
                initial burden of showing a prima facie case of unpatentability.  Id. at 1472,                
                223 USPQ at 788.  When that burden is met, the burden then shifts to the                      
                applicant to rebut.  Id.; see also In re Harris, 409 F.3d 1339, 1343-44, 74                   
                USPQ2d 1951, 1954-55 (Fed. Cir. 2005) (finding rebuttal evidence                              
                unpersuasive).  If the applicant produces rebuttal evidence of adequate                       
                weight, the prima facie case of unpatentability is dissipated.  In re Piasecki,               
                745 F.2d at 1472, 223 USPQ at 788.  Thereafter, patentability is determined                   
                in view of the entire record.  Id.  However, on appeal to the Board it is an                  
                appellant's burden to establish that the Examiner did not sustain the                         
                necessary burden and to show that the Examiner erred -- on appeal we will                     
                not start with a presumption that the Examiner is wrong.                                      
                      "Section 103 forbids issuance of a patent when 'the differences                         
                between the subject matter sought to be patented and the prior art are such                   
                that the subject matter as a whole would have been obvious at the time the                    
                invention was made to a person having ordinary skill in the art to which said                 
                subject matter pertains.'"  KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,                  
                1734, 82 USPQ2d 1385, 1391 (2007).  The question of obviousness is                            
                resolved on the basis of underlying factual determinations including (1) the                  
                scope and content of the prior art, (2) any differences between the claimed                   
                subject matter and the prior art, and (3) the level of skill in the art.  Graham              


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