Appeal No. 95-3140
Application No. 08/058,453
THE REJECTION UNDER 35 U.S.C. § 103
The burden of establishing a basis for denying
patentability to a claimed invention rests upon the U.S.
Patent and Trademark Office. In rejecting claims under 35
U.S.C. § 103, it is incumbent upon the examiner to establish a
factual basis to support the legal conclusion of obviousness
and to provide a reason why one having ordinary skill in the
art would have been led to modify the prior art reference to
arrive at the claimed invention. The requisite motivation
must stem from some teaching, suggestion or inference in the
prior art as a whole or knowledge generally available to one
having ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Sole independent claim 1 requires that the concrete being
tested have unknown water and cement proportions, that a
difference magnitude related to a difference between (1) a
first value related to a reflection coefficient for a concrete
sample having known water and cement portions and (2) a second
value related to a reflection coefficient based upon at least
said reflected microwave signal from the concrete being tested
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