Appeal No. 1999-1590
Application No. 08/803,624
engineering choice." Appellant asserts (Brief, pages 8-9) that
the examiner's rejection is based on hindsight acquired from
appellant's disclosure. We agree. Without some teaching or
suggestion to display more than the probability of becoming
pregnant, we decline to find that such a display would have been
obvious. The Court has held that "[w]ith respect to core factual
findings in a determination of patentability, however, the Board
cannot simply reach conclusions based on its own understanding or
experience -- or on its assessment of what would be basic
knowledge or common sense." In re Zurko, No. 96-1258 (Fed. Cir.
August 2, 2001). Thus, we cannot sustain the obviousness
rejection of claim 1 nor of its dependents, claims 2 through 15.
Claim 16 recites the specific dates to be displayed -- the
dates of a woman's last and next menstrual cycle. As explained
above, Desjacques has no reason to display any information other
than the probability of becoming pregnant, and the examiner has
provided no teachings or suggestions from the prior art as to why
it would have been obvious to include such a display. Therefore,
we cannot sustain the obviousness rejection of claim 16 nor of
its dependents, claims 17 through 20.
As appellant has not argued the obviousness-type double
patenting rejection, we will sustain the rejection pro forma.
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