Appeal No. 95-3681
Application 07/956,705
answer, the Examiner points out that fax machines as well as
cellular phones operate such that the number must be stored and
then outpulsed to the central office when the user presses the
“send” key.
We agree that fax machines and cellular telephones that
are in use at the time of this opinion operate as described by
the Examiner. However, the Examiner has not provided any
evidence that such systems were known prior to the filing of
Appellants’ application. We are not inclined to dispense with
proof by evidence when the proposition at issue is not supported
by a teaching in a prior art reference, common knowledge or
unquestionable demonstration. Our reviewing court requires this
evidence in order to establish a prima facie case. In re Knapp-
Monarch Co., 296 F.2d 230, 232, 132 USPQ 6, 8 (CCPA 1961); In re
Cofer, 354 F.2d 664, 668, 148 USPQ 268, 271-72 (CCPA 1966).
Therefore, we will not sustain the Examiner rejection of
claim 16.
Claims 4, 21 and 34 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Mincone, Treat and Riskin.
Appellants argue on pages 14 and 15 of the brief that the
proposed Examiner’s combination is untenable since the proposed
combination is a system that was not then commercially available.
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