Appeal No. 1998-1329
Application 08/642,595
would create the “uneven tension” between the layers as
claimed. No evidence of record, however, has been offered by
the Examiner as support for this conclusion. Similarly, the
Examiner’s reliance on the illustration in Figures 1 and 3 of
Lo’s cover in a folded configuration as an indication that the
covers retain their shape and therefore establish the
inherency of “uneven tension” in the layers is totally without
support on the record. Lo’s disclosure is completely silent
with regard to any discussion of shape retention, let alone
any indication that any such shape retention would be as a
result of “uneven tension” between the cover layers. 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 capable of 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).
With regard to the Barriere and Thompson references
applied by the Examiner for teaching the features of a two
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