Appeal No. 96-2546
Application No. 08/001,825
optimum signal is not supported by any evidence of record. 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, common knowledge or capable 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).
In view of the above, it is our opinion that, since the
comparison operation with attendant surface wave direction
indication which appears in all of the rejected independent
claims 1, 7, 12, and 14 is not suggested in the prior art of
record, the Examiner has not established a prima facie case of
anticipation. Accordingly, we can not sustain the 35 U.S.C.
§ 102(b) rejection of independent claims 1, 7, 12 and 14 nor
claims 3-5, 10, 11, and 13 which depend therefrom.
We now consider the rejection of claims 1-15 under 35
U.S.C. § 103 as being unpatentable over Fenwick in view of
Lee. From the Examiner’s statement of the rejection (Answer,
page 3 which again references the prior Office action, the
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