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
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