Appeal No. 96-1637
Application 08/130,940
would have been obvious to pass the second end of an antenna wire
through a hole in the sea ice so as to make contact with the sea
water beneath the ice is not persuasive. There is no evidence in
support of this position. The examiner’s opinion is based on
unsupported conclusions that water has better conductivity than
sea ice, that it is widely known, particularly in naval
communications, that sea water acts as a waveguide for ELF
signals, and that such knowledge is analogous to burying ground
radials in the earth for a vertical (Marconi type) radiator used
by amateur radio operators since the 1920’s (Answer, page 7).
Assertions of technical facts in areas of esoteric technology must
always be supported by citation to some reference work recognized
as standard in the pertinent art. In re Ahlert, 424 F.2d 1088,
165 USPQ 418 (CCPA 1970). Such being the case, the judgment of
obviousness takes into account knowledge which has not been shown
to be within the level of ordinary skill in the art at the time
the invention was made. Thus, it appears that the examiner’s
hindsight reconstruction is improper. In re McLaughlin, 443 F.2d
1392, 170 USPQ 209 (CCPA 1971).
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