Appeal No. 2001-1541 Page 8
Application No. 09/094,297
have reviewed Dierker's disclosure and fail to find any
suggestion whatsoever of applying Dierker's control system to
a rail vehicle.
For the reasons set forth above, the subject matter of
claims 1 and 9 would not have been obvious from Dierker.
Accordingly, the decision of the examiner to reject claims 1
and 9, and claim 3 dependent on claim 1, under 35 U.S.C. § 103
is reversed.
The obviousness rejection based on Kull
2(...continued)
or, in some cases, from the nature of the problem to be
solved, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc.,
75 F.3d 1568, 1573, 37 USPQ2d 1626, 1630 (Fed. Cir. 1996),
Para-Ordinance Mfg., Inc. v. SGS Importers Int'l., Inc., 73
F.3d 1085, 1088, 37 USPQ2d 1237, 1240 (Fed. Cir. 1995), cert.
denied, 117 S. Ct. 80 (1996), although "the suggestion more
often comes from the teachings of the pertinent references,"
In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1456 (Fed.
Cir. 1998). The range of sources available, however, does not
diminish the requirement for actual evidence. That is, the
showing must be clear and particular. See, e.g., C.R. Bard
Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1352, 48 USPQ2d 1225,
1232 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 1804 (1999).
A broad conclusory statement regarding the obviousness of
modifying a reference, standing alone, is not "evidence." See
In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.
Cir. 1999).
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