Appeal No. 98-0683
Application 08/505,853
rear view mirror with an attaching means is an "obvious
expedient," we must point out that obviousness under § 103 is a
legal conclusion based on factual evidence. In re Fine, 837 F.2d
1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). The mere fact
that Short attaches the auxiliary sun visor in "close proximity"
to the front face of the rear view mirror (i.e., on the supporting
arm or stud 15) does not serve as a sufficient factual basis for
establishing the obviousness of providing an attaching means that
substantially covers the entire front face of the rear view mirror
as claimed. See In re GPAC, Inc., 57 F.3d 1573, 1582, 35 USPQ2d
1116, 1123 (Fed. Cir. 1995) and In re Warner, 379 F.2d 1011, 1017,
154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
With respect to claim 9, we have carefully reviewed the
teachings of Viertel but find nothing therein which would overcome
the deficiencies of Short, Lystad, Gleason and Hou that we have
noted above.
The rejections of claims 1-11 under 35 U.S.C. § 103(a) are
reversed.
REVERSED
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