Appeal No. 1999-1110
Application No. 08/665,755
not a recognized substitute for providing evidence. The examiner may not “deem” that any
transceiver electronics package of Braun includes the specific circuitry recited. The
examiner should be aware that “deeming” does not discharge him from the burden of
providing the requisite factual basis and establishing the requisite motivation to support a
conclusion of obviousness. The examiner’s reference to unidentified phantom prior art
falls far short of the mark. Ex parte Stern, 13 USPQ2d 1379, 1381. The examiner must
show where such circuitry is taught by Braun or why such circuitry would be inherent in the
Braun disclosure.
The statement of rejection does not address the claimed limitation of processing
information “selected from the group consisting of voice, video, and data link information.”
Because the instant invention is interested in communication by point-to-point microwave
radio frequency, voice, video and/or data link information is processed. The airborne
radar system of Braun clearly is not interested in voice or video information and it is
arguable as to whether the radar information provided in Braun may be considered “data
link information.” The examiner’s contention that a transceiver includes a detector and
modulator that extracts voice or data frequencies or
impresses upon a carrier such voice or data frequencies and that these are “essential and
inherent components of a transceiver” [answer-page 4] is unsupported. We find no
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