Tuesday, May 07, 2013

Examiner reversed in Ex parte Chen

from Ex parte Chen

“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citation omitted).

There was a missing element:

The evidence of record does not support the Examiner’s conclusion
that Gordon, Dickhudt, and Edwards teach or suggest “retracting the device
until the plurality of radially extendable arms positioned at an axis
perpendicular to the insertion axis engages the interior wall of the
gastrointestinal tract” as required by claim 13.


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