Appeal No. 2005-2537
Application No. 09/921,429
ordinary skill in the art. In re Rose, 105 USPQ 237
(CCPA 1955) [answer, page 5].
The examiner’s position here is unsound. To begin with, the
combined teachings of Nguyen and Current contain no indication that
the height or size of the Nguyen device is a problem or that a
reduction thereof would be advantageous. Indeed, it is not even
clear that the proposed modification of the Nguyen device would
result in any significant reduction in its height or overall size.
The references also fail to show any appreciation of the pen
needle assembly connection benefits afforded by the radially
disposed cavities of the appellant’s invention. In this light, it
is evident that the only suggestion for combining Nguyen and
Current in the manner advanced by the examiner stems from hindsight
knowledge impermissibly derived from the appellant’s disclosure.
The evidentiary deficiencies in the applied references find no cure
in the examiner’s reliance on ambiguous averments of knowledge
generally available in the art and/or general rules of obviousness
relating to changes in size and rearrangement of parts. Bald
assertions of common knowledge are not a substitute for the
evidence necessary to support a conclusion of obviousness. See In
re Lee, 277 F.3d 1338, 1345, 61 USPQ2d 1430, 1435 (Fed. Cir. 2002).
Furthermore, the use of per se rules of obviousness is legally
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