Appeal 2007-1412
Application 09/822,152
The pivotal issue in the appeal before us is as follows:
Has Appellant shown2 that the Examiner failed to establish that one of
ordinary skill in the art, at the time of the invention, would have found that
the combined disclosures of Lapierre, Goddard and DeStefano render the
claimed invention unpatentable under 35 U.S.C. § 103(a)? More
particularly, would the ordinarily skilled artisan have been led to modify
Lapierre’s closed-caption system by highlighting potentially objectionable
words, previously blocked by Lapierre’s system, in order to draw the
viewer’s attention to such words to adjust their contents?
FINDINGS OF FACT
The following findings of fact are supported by a preponderance of
2 In the examination of a patent application, the Examiner bears the
initial burden of showing a prima facie case of unpatentability. In re
Piasecki 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). 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. 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.
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