Appeal No. 2000-0354
Application No. 08/682,471
1697 (Fed. Cir. 2001). See also In re Lee, 277 F.3d 1338, 1344-
45, 61 USPQ2d 1430, 1434-35 (Fed. Cir. 2002). The court in Lee
requires evidence for the determination of unpatentability by
clarifying that “common knowledge and common sense,” as mentioned
in In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA
1969), may only be applied to analysis of the evidence, rather
than be a substitute for evidence. Lee, 277 F.3d at 1345, 61
USPQ2d at 1435. See Smiths Indus. Med. Sys., Inc. v. Vital
Signs, Inc., 183 F.3d 1347, 1356, 51 USPQ2d 1415, 1421 (Fed. Cir.
1999)(Bozek’s reference to common knowledge “does not in and of
itself make it so” absent evidence of such knowledge).
Although we do not have before us an assertion of common
knowledge and common sense in the art as in In re Lee, the
examiner has made an analogous assertion that the feature of
exceeding a threshold was essentially notoriously old and well
known in the art. Correspondingly, the examiner’s assertion
appears to us to be a substitute for actual evidence to prove the
examiner’s assertion. See Lee above. More recently, however,
the court expanded its reasoning in In re Thrift, 298 F.3d 1357,
2002 U.S. App. LEXIS 16446 (Fed. Cir. 2002).
Since the examiner has indicated at page 5 of the final
rejection by the examiner’s reference to Kikinis that the feature
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