Appeal 2007-1340
Application 09/996,125
ANALYSIS
All timely filed evidence and properly presented argument is
considered by the Board in resolving an obviousness issue on appeal. 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.
As will be discussed infra, we conclude that the differences between
the prior art and the claimed subject matter are such that the claimed subject
matter as a whole would have been obvious to a person having ordinary skill
in the art at the time the invention was made. We find that the Appellants
have not shown that the Examiner failed to make out a prima facie showing
of obviousness with respect to claims 1-3, 5-15, and 17-29. Appellants
failed to meet the burden of overcoming that prima facie showing.
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