Appeal No. 2001-0079
Application No. 09/092,702
We also do not sustain the Examiner’s 35 U.S.C. § 103(a)
rejection of claims 25 and 26 directed to the “outwardly bowed”
configuration of the longer pair of opposed sides of the
dispensing device outer shell. Although the Examiner (Answer,
page 7), asserts “ . . . changing the shape of the shell for the
purpose of avoiding warpage problems is considered to be a common
practice or a mechanical design expedient for an engineer
depending upon a particular environment . . . , ” we find no
evidence of record to support such a conclusion. “[T]he 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. Rather, the Board must point to some
concrete evidence in the record in support of these findings.”
In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir.
2001). See also Lee, 277 F.3d at 1344-45, 61 USPQ2d at 1434-35,
in which the court required evidence for the determination of
unpatentability by clarifying that the principles of “common
knowledge” and “common sense” may only be applied to analysis of
evidence, rather than be a substitute for evidence. The court
has also recently expanded their reasoning on this topic in In re
Thrift, 298 F.3d 1357, 1364, 63 USPQ2d 2002, 2006-07 (Fed. Cir.
2002).
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: November 3, 2007