Appeal No. 95-2382
Application 07/955,671
of the invention existed in the prior art, absent some teaching
or suggestion, in the prior art, to combine the elements.”). The
examiner’s finding that EP ‘493 “teaches that photographic layers
can be chill set in a downwards facing manner in order to help
provide a smooth and defect free coating” is not supported by the
record before us. EP ‘493 does not teach any benefits of
chilling in a downwards facing manner. Where the legal
conclusion of obviousness is not supported by facts, it cannot
stand. See In re Warner, 379 F.2d 1011, 1016-17, 154 USPQ 173,
177-78 (CCPA 1967). Accordingly, the rejection of claims 8, 10,
27, 31 and (8, 10, 27, 31)/11-13 under 35 U.S.C. § 103 as
unpatentable over EP ‘493 is reversed.
C. The Remaining Rejections Under § 103
Appellants have not contested the applicability of the
references in the remaining three rejections of dependent claims
under § 103 except for the arguments discussed above regarding
the primary reference EP ‘493 and the argument that Di Mino is
nonanalogous art (brief, pages 7-9). Thus we will only address
appellants’ argument regarding Di Mino. We find Di Mino to be
analogous art and properly combinable with EP ‘493 substantially
for the reasons set forth by the examiner on pages 15 and 16 of
8
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