Appeal 2007-2217
Application 11/231,232
The Obviousness Rejections
Likewise, we will sustain the Examiner's obviousness rejections of (1)
claim 6 under 35 U.S.C. § 103(a) as unpatentable over Schofield in view of
O’Farrell, and (2) claims 5 and 16 under 35 U.S.C. § 103(a) as unpatentable
over Schofield in view of Pabla.
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). If the Examiner’s burden is met, the burden then
shifts to the Appellants to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis of the
evidence as a whole and the relative persuasiveness of the arguments. See In
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Specifically, we find that (1) the Examiner has established at least a
prima facie case of obviousness for these claims on Pages 10-13 of the
Answer, and (2) Appellants have not persuasively rebutted the Examiner's
prima facie case, but merely reiterate the arguments made with respect to the
independent claims (Br. 20-21). For the reasons previously discussed, the
rejection is therefore sustained.
OTHER ISSUES
Should further prosecution follow this opinion, we refer the Examiner
to the following prior art references that appear relevant to the claimed
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