Appeal No. 98-0600 Application 08/541,441 Alternatively, the examiner finds that it would have been obvious to one with ordinary skill in the art to make the distance S at less than half of the distance G, because if not, the magnetic shield members on the sides of the sensor would shunt away incoming transition flux from the magnetic medium. But even assuming that one with ordinary skill in the art would have recognized some shunting effects due to the shields, the evidence does not support the examiner’s conclusion that one with ordinary skill in the art would have arrived at the specific upper threshold claimed by the appellant for distance S, i.e., "half of the distance G." Just as an attorney’s arguments do not constitute facts, neither do the examiner’s unsubstantiated factual assertions. For the foregoing reasons, the examiner’s conclusion of obviousness is without adequate factual basis. Rather, it is highly speculative and based on improper hindsight in light of the appellant’s own disclosed invention. Conclusion 6Page: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 3, 2007