Appeal No. 1999-1895
Application No. 08/363,315
assertion that the claimed phase shifting is, in fact,
inherent to De Gaudenzi's method and system.
In addition, the Court recently 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, as the examiner
has provided no reference or evidence of the obviousness of
the claimed phase shifting, we decline to find that it would
have been obvious. Since the examiner has failed to show with
appropriate evidence that De Gaudenzi meets the claimed phase
shifting, the examiner has failed to establish a prima facie
case of obviousness. Accordingly, we cannot sustain the
obviousness rejection of claim 5 nor of its dependents, claims
6 through 8.
CONCLUSION
The decision of the examiner rejecting claims 1 through 8
and 13 through 15 under 35 U.S.C. § 103 is reversed.
8
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