Ex parte ZOUGHI et al. - Page 8

          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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