Appeal No. 1997-3930
Application 08/394,596
find that Fuller fails to teach a spectrometer to obtain an
evanescent spectrum of hydrocarbon sample.
Upon our review of the references relied on the Examiner,
we fail to find that the Examiner has provided us evidence of
"means to obtain an evanescent spectrum of the hydrocarbon
sample from the non-cladded portion" as recited in Appellants'
claim 1.
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 or shown to be common knowledge of
unquestionable demonstration. Our reviewing court requires
this evidence in order to establish a prima facie case. In re
Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88 (Fed.
Cir. 1984); 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). Our reviewing court states in
In re Piasecki, 745 F.2d 1468, 223 USPQ 785, 788 (Fed. Cir.
1984) the following:
The Supreme Court in Graham v. John Deere Co., 383
U.S. 1 (1966), focused on the procedural and
evidentiary processes in reaching a conclusion under
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