Appeal No. 2000-1075
Application 08/838,910
Pollner discloses an oxygen concentration detector having on
an external electron conductive layer (13) a porous cover
coating (14) which preferably is made of an oxide or a mixed
oxide such as spinel and may have a pore area between 10% and 50%
(col. 4, lines 4-6; col. 5, lines 19-32).
The examiner argues that Torisu’s protective layer must be
sufficiently porous to permit passage of reference air, and that
a protective layer having a porosity of 10% obviously would
provide both the required protection and porosity (answer,
pages 5 and 8). The references are totally analogous, the
examiner argues, and “[i]ncorporating conventional features from
analogous prior art is within the skill of the art” (answer,
page 5).
In order for a prima facie case of obviousness to be
established, the teachings from the prior art itself must appear
to have suggested the claimed subject matter to one of ordinary
skill in the art. See In re Rinehart, 531 F.2d 1048, 1051, 189
USPQ 143, 147 (CCPA 1976). The mere fact that the prior art
could be modified as proposed by the examiner is not sufficient
to establish a prima facie case of obviousness. See In re
teaching which remedies the deficiency in Torisu as to the
porosity of the protective layer.
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