Appeal No. 1999-0074 Application No. 08/401,347 extends away from the front and rear faces of the radiator core. Accordingly, even if we were to agree with the examiner that it would have been obvious to provide the radiator assembly of Jackson with a unitary flat tank torque plate in view of Ivy, the subject matter of claims 1 and 16 would not result. This constitutes a second reason necessitating reversal of the examiner’s rejection. We also do not find the deficiencies of Jackson and Ivy discussed above to be cured by reliance on case law such as In re Larson, 340 F.2d 965, 144 USPQ 347 (CCPA 1965), and Nerwin v. Erlichman, 168 USPQ 177 (Bd. Pat. Int. 1969) cited by the examiner on pages 4 and 5 of the answer. Obviousness under § 103 is a legal conclusion based on factual evidence (In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988), and the subjective opinion of the examiner as to what is or is not obvious, without evidence in support thereof, does not suffice. Since the examiner has not provided a sufficient 8Page: Previous 1 2 3 4 5 6 7 8 9 10 11 NextLast modified: November 3, 2007