Appeal No. 2002-0040 Page 7
Application No. 08/937,392
1338, 1343-44, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). “It must be based on
objective evidence of record.” Id. at 1343, 61 USPQ2d at 1434.
Here, the examiner fails to allege, let alone show objective evidence of, the
desirability of incorporating a global index into Duda’s use of content routing based on
content labels. We will not “resort to speculation,” In re Warner, 379 F.2d 1011, 1017,
154 USPQ 173, 178 (CCPA 1967), about such desirability. Therefore, we reverse the
obviousness rejection of claim 5.
CONCLUSION
In summary, the rejection of claims 4 and 6 under § 102(a) and the rejection of
claim 5 under § 103(a) are reversed.
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