Appeal No. 95-1971
Application No. 08/126,130
melting point, we must point out that the mere fact that,
generally speaking, this might be the case does not provide a
sufficient factual basis for establishing the obviousness of
the appealed subject matter within the meaning of 35 U.S.C. §
103. See, e.g., 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).
The appellant has presented evidence of non-obviousness
in the form of a declaration by Fickling and a self-executed
declaration. However, since the prior art relied on by the
examiner fails to establish a prima facie case of obviousness,
we need not consider the appellant's evidence of
nonobviousness. In re Fine, supra, 837 F.2d at 1076, 5 USPQ2d
at 1600 (Fed. Cir. 1988).
The decision of the examiner is reversed.
REVERSED
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