Appeal No. 1998-0223
Application No. 08/351,749
been obvious as a substitute of art recognized equivalents
(Answer at page 5). Appellants have drawn numerous
distinctions between the claimed invention and the applied
prior art, see pages 24 to 29 of the Brief. These argued
distinctions point to the claimed features recited in the last
two paragraphs of claim 1. With respect to the missing
teaching in Humble '343, the Examiner merely relies on his own
opinion that as a substitute of art recognized equivalents, it
would have been obvious for an artisan to permit operation of
the conveyer means only after the weight and the code of the
article are found to coincide. However, we are not persuaded
by the Examiner's contention. We find that the Examiner has
presented no evidence to base the conclusion of obviousness
other than an assumption that the suggested modification of
Humble '343 would have been a matter of mere substitution of
art recognized equivalents. Such assertion by the Examiner
cannot replace the requirement of factual evidence. Therefore
we cannot sustain the obviousness rejection of claim 1 and its
dependent claims 2 to 4, 15 and 16 over Humble '343.
With regard to the rejection of claims 5 to 8, which
depend on claim 1, the Examiner adds Humble '018 to Humble
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