Appeal No. 96-0984
Application 08/132,529
1461, 1464 (Bd. Pat. App. & Int. 1990)). It simply does not
follow that just because the texture of a surface is rough that
it has interconnected depressions with communicating passageways.
For example, a rough surface can be formed by spaced apart
depressions having no interconnecting passageways whatsoever.
While of course it is possible that some roughened surfaces may
have interconnected depressions with communicating passageways,
inherency may not be established by probabilities or
possibilities. See In re Oelrich, 666 F.2d 578, 581, 212 USPQ
323, 326 (CCPA 1981) and Rijckaert, 9 F.3d at 1534, 28 USPQ2d at
1957.
Since (1) there is no reasonable basis to conclude that the
roughened surface of Bridger inherently has interconnected
depressions with communicating passageways and (2) the examiner
has not provided a factual basis for establishing the obviousness
of such an arrangement (see In re GPAC Inc, 57 F.3d 1573, 1582,
35 USPQ2d 1116, 1123 (Fed. Cir. 1995) and In re Warner, 379 F.2d
5
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