Appeal No. 95-5053
Application 08/048,188
ordinary skill in the art), the examiner relies on the
knowledge of persons of ordinary skill in the art because
neither Gillig nor Rose discloses the contested limitations of
combining two adjacent frequency bands into a single band or
using a single demodulating circuit. However, the knowledge
attributed to one of ordinary skill in the art must be
supported by evidence, not just plausible explanations of why
something might have been done or statements that it was
within the level of skill in the art. Cf. In re Rouffet,
149 F.3d 1350, 1358, 47 USPQ2d 1453, 1459 (Fed. Cir. 1998)
("Because the Board did not explain the specific understanding
or principle within the knowledge of a skilled artisan that
would motivate one with no knowledge of Rouffet's invention to
make the combination, this court infers that the examiner
selected these references with the assistance of hindsight.").
Here, the examiner got to the point of proving that it would
have been obvious for the received frequency bands of cordless
and cellular telephones to be adjacent and then, at the very
limitations which constitute appellant's invention, used
hindsight rationale based on appellant's disclosure to supply
the motivation to use a common frequency band and a single
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