Appeal No. 95-2662
Application 07/771,262
art suggested the desirability of [such a] modification’”). Here, the examiner has not
provided any factual evidence, or sound scientific reasoning, as to why “the ordinary
artisan would have recognized that ‘if some is good, more is better.”’ Answer, p. 6. As
pointed out by the appellant, this is not a generically true proposition. Reply Brief, p. 2.
For example, in the medical arts, “more” may be lethal; e.g., “more” of a drug can result in
an overdose. Id. As to the examiner’s statement that he “feels that the invention [sic,
would have been] immediately obvious to the ordinary artisan upon reading the ‘800
[Boime] disclosure, and asserts that the ordinary artisan would immediately envision how
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to carryout such a modification,” we remind him that a conclusion of obviousness must be
based on fact, not unsupported assertions and generalities. In re Freed, 425 F.2d 785,
787, 165 USPQ 570, 571 (CCPA 1970);
In re Warner 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied,
389 U.S. 1057 (1968). Accordingly, we reverse the rejection.
The decision of the examiner is reversed.
4Answer, p. 7.
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