Appeal 2007-1831
Application 10/313,052
examiner must also provide “some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (cited with
approval in KSR Int’l. Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82
USPQ2d 1385, 1396 (2007)). Only if this initial burden is met does the
burden of coming forward with evidence or argument shift to the appellant.
See Oetiker, 977 F.2d at 1445, 24 USPQ2d at 1444. Id. at 1445, 24 USPQ2d
at 1444. See also Piasecki, 745 F.2d at 1472, 223 USPQ at 788.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See Oetiker, 977 F.2d at 1445,
24 USPQ2d at 1444; Piasecki, 745 F.2d at 1472, 223 USPQ at 788.
ANALYSIS
We reverse all of the rejections on appeal.
As noted above, it is incumbent upon the examiner to provide some
articulated reasoning with a rational underpinning to support the legal
conclusions of obviousness. We do not find a rational underpinning with
regard to the combined teachings cited by the examiner.
Arnold and Sigalla both disclose conventional aircraft as claimed in
the preamble of Appellants’ claims. However, with respect to Burnelli, we
recognize that Burnelli is directed to a flying wing or tailless aircraft. The
structures 13 and 14 of Burnelli are the stabilizers and the rudder of the
aircraft and are provided instead of a tail having such a stabilizer and rudder.
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