Appeal No. 1999-0574
Application No. 08/583,588
an evidentiary record which supports the finding of
obviousness. It does not matter how strong the examiner’s
convictions are that the claimed invention would have been
obvious, or whether we might have an intuitive belief that the
claimed invention would have been obvious within the meaning
of 35 U.S.C. § 103. Neither circumstance is a substitute for
evidence lacking in the record. Whether there is prior art
available which would render these appealed claims
unpatentable we cannot say. Whether the examiner could have
developed a reasonable basis for asserting the obviousness of
the claimed invention based on the present record we will not
speculate. We can say, however, that the record presently
before us does not support the rejection as formulated by the
examiner. Therefore, we do not sustain the examiner’s
rejection of independent claim 1 based on Zerillo and the
admitted prior art.
With respect to the claims which depend from claim 1,
the examiner has simply asserted the obviousness of these
claims without any cogent rationale. Also, since Lin does not
overcome the basic deficiencies in the record with respect to
Zerillo and the admitted prior art, we also do not sustain the
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