Appeal No. 1997-3798 Page 10
Application No. 08/272,018
not "evidence." E.g., McElmurry v. Arkansas Power & Light
Co., 995 F.2d 1576, 1578, 27 USPQ2d 1129, 1131 (Fed. Cir.
1993) ("Mere denials and conclusory statements, however, are
not sufficient to establish a genuine issue of material
fact."); In re Sichert, 566 F.2d 1154, 1164, 196 USPQ 209, 217
(CCPA 1977) ("The examiner's conclusory statement that the
specification does not teach the best mode of using the
invention is unaccompanied by evidence or reasoning and is
entirely inadequate to support the rejection."). See also In
re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.
Cir. 1999).
In our view, the only suggestion for modifying Eriksson
in the manner proposed by the examiner to meet the above-noted
limitations of claims 1 and 2 stems from hindsight knowledge
derived from the appellant's own disclosure. The use of such
hindsight knowledge to support an obviousness rejection under
35 U.S.C. § 103 is, of course, impermissible. See, for
example, W. L. Gore and Associates, Inc. v. Garlock, Inc., 721
F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984).
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