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
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