Obviousness reversed in Ex parte PAMARTHY
On this record, the Examiner has not provided a credible reason why one of ordinary skill in the art would have modified Masuda’s optical transmitter to have Nishimoto’s through holes. The Examiner has not dispensed with the initial burden of establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
We reverse all the Examiner’s rejections under § 103.
As to the remaining rejection:
As all of the prior art rejections have been reversed and the present application is senior to application 11/421,208, it would be premature for the Board to address this provisional obviousness-type double patenting rejection. Ex parte Moncla, 95 USPQ2d 1884, 1885 (BPAI 2010). See, Ex parte Jerg, Appeal No. 2011-000044 (BPAI 2012) (informative status). See also, Manual of Patent Examining Procedure (MPEP) § 804(B)(1) (Rev. 8, July 2010).