Appeal No. 1999-2092 Page 20
Application No. 08/798,718
modifying a reference, standing alone, is not "evidence."
E.g., McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576,
1578, 27 USPQ2d 1129, 1131 (Fed. Cir. 1993); In re Sichert,
566 F.2d 1154, 1164, 196 USPQ 209, 217 (CCPA 1977). See also
In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.
Cir. 1999). In this case, the examiner has not presented
sufficient evidence establishing the obviousness of the
subject matter of claim 51.
For the reasons set forth above, the decision of the
examiner to reject claim 51 under 35 U.S.C. § 103 is reversed.
Claims 44, 46 and 48 to 50
In accordance with the appellant's Grouping of Claims and 4
37 CFR § 1.192(c)(7), claims 44, 46 and 48 to 50 fall with
claims 42 and 47. Thus, it follows that the decision of the
examiner to reject claims 44, 46 and 48 to 50 is also
affirmed.
4See pages 3-4 of the appellant's brief.
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