Appeal 97-1804
Application 08/329,042
Dr. Nguyen did not state the basis upon which he had observed
the absence of pores. Finding 34(a). The examiner also found
that Dr. Nguyen did not provide objective evidence to support
a conclusion that the OPC layer made in accordance with
Example 1 would invariably be continuous and non-porous.
Finding 34(b).
As a general proposition we agree with the examiner that
an expert may be called upon to state the underlying basis for
an opinion. Cf. Fed. R. Evid. 705. We also agree that Dr.
Nguyen did not state the underlying basis for his opinion that
OPC's he had observed were continuous and non-porous. We also
agree with the examiner that generally nothing requires the
fact finder to credit the unsupported assertions of an expert
witness. Cf. Rohm and Haas Co. v. Brotech Corp., 127 F.3d
1089, 1092, 44 USPQ2d 1459, 1462 (Fed. Cir. 1997). On the
other hand, the absence of an underlying basis and the absence
of technical support for an opinion does not mean the expert
opinion must be rejected. In this case, Dr. Nguyen also has
told us that:
a necessary feature of an organic photoconductor
layer is that it be non-porous because pores in the
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