Appeal No. 1999-2446 Page 21
Application No. 08/705,592
as to why it would have been obvious at the time the invention
was made to a person having ordinary skill in the art to have
modified the mesh opening size of Scott to be about ½ inch.
In fact, the examiner has not even alleged that such a
modification of the wire mesh in Scott would have been obvious
at the time the invention was made to a person having ordinary
skill in the art. Since the examiner has not established8
that the subject matter of claim 10 would have been obvious
under 35 U.S.C. § 103, the decision of the examiner to reject
claim 10 under 35 U.S.C. § 103 as being unpatentable over
Scott is reversed.
Claim 12
7(...continued)
particular. See, e.g., C.R. Bard, Inc. v. M3 Sys., Inc., 157
F.3d 1340, 1352, 48 USPQ2d 1225, 1232 (Fed. Cir. 1998). A
broad conclusory statement regarding the obviousness of
modifying a reference, standing alone, is not "evidence."
E.g., McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576,
1578, 27 USPQ2d 1129, 1131 (Fed. Cir. 1993); In re Sichert,
566 F.2d 1154, 1164, 196 USPQ 209, 217 (CCPA 1977). See also
In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.
Cir. 1999).
8See page 7 of the answer.
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