Appeal No. 96-2520
Application 07/891,852
the Examiner states in the second supplemental answer that
Yamazaki, U.S. Patent No. 4,752,963, teaches a damper made of
rubber but has not applied this reference in the rejection.
Our reviewing court has stated that where a refer-
ence is relied on to support a rejection, whether or not in a
minor capacity, there would appear to be no excuse for not
positively including the reference in the statement of the
rejection. In
re Hoch, 428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970).
We are not inclined to dispense with proof by evidence when
the proposition at issue is not supported by a teaching in a
prior
art reference or shown to be common knowledge of
unquestionable demonstration. Our reviewing court requires
this evidence in order to establish a prima facie case. In re
Knapp-Monarch Co.,
296 F.2d 230, 232, 132 USPQ 6, 8 (CCPA 1961); In re Cofer, 354
F.2d 664, 668, 148 USPQ 268, 271-72 (CCPA 1966). Therefore,
we will not sustain the Examiner's rejection of claims 1, 2
and 11.
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