Appeal 2007-1087
Application 11/150,806
Further, a rejection based on section 103 must rest upon a factual
basis rather than conjecture, or speculation. “Where the legal conclusion [of
obviousness] is not supported by the facts it cannot stand.” In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967). See also In re Lee,
277 F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002) and In re
Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
ANALYSIS
The Examiner does not show where the prior art teaches or suggests
that two sets of angles between three stars are measured as the telescope is
aligned with each of these stars. While Gagnon indicates that the telescope
is oriented using two stars, as argued by Appellant (Br. 13), the user must
know the coordinates of the two stars, which is not required in Appellant’s
claimed invention.
In that regard, the Examiner’s assertion that Bezooijen provides for
the additional objects to be used for measuring the extra angle (Answer 6),
ignores the specific recited features of the claim. Bezooijen’s angular
separation is measured based on the detected angles between the stars in a
fixed starfield and not based on the angles when the telescope is aligned with
each star. Thus, one of ordinary skill in the art would not have used the
measurements from a starfield obtained by Bezooijen to be applied to the
additional stars in Gagnon since Gagnon only needs the coordinates of the
two stars (col. 6, ll. 30-33). Based on our findings above, we find that the
Examiner’s rejection is based on less than a preponderance of the evidence
and thus, fails to provide sufficient reasons for finding claims 9, 17, and 18,
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Last modified: September 9, 2013