Appeal No. 1997-3914
Application No. 08/384,457
We have reviewed the figures indicated by the Examiner
and find several probability distribution curves illustrated.
However, without further illumination by the Examiner, we are
at a loss to understand how they meet the language of claim
15.
We are not inclined to dispense with proof by evidence
when the proposition at issue is not supported by a teaching
in a prior art reference, common knowledge or unquestionable
demonstration. Our reviewing court requires this evidence in
order to establish a prima facie case. In re Knapp-Monarch
Co., 296 F.2d 230, 232, 132 USPQ 6, 8 (CCPA 1961); In re
Cofer, 354 F.2d 664, 668, 148 USPQ 268, 271-72 (CCPA 1966).
Thus, we will not sustain the Examiner’s rejection of claim
15.
In view of the foregoing the decision of the Examiner
rejecting claims 9 through 14 under 35 U.S.C. § 103 is
affirmed; however, the decision of the Examiner rejecting
claim 15 under 35 U.S.C. § 103 is reversed.
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