Appeal No. 2001-1077
Application No. 09/051,506
614 in Schmiedel is illustrated, for example in Figure 23, as a
plurality of composite parts, the structural nature of which is not
described in the disclosure of Schmiedel. Given this deficiency in
the disclosure of Schmiedel, it is our view that any conclusions
drawn as to the structure of Schmiedel’s magnet supporting region
below rubber blanket element 614 can only be based on unwarranted
speculation.
As to the Examiner’s position that the asserted first and
second magnet supporting areas in Schmiedel have differing elastic
resiliency as claimed “...due to the left-right symmetry of the
magnetic chamber base” (Answer, page 2), we find the record totally
devoid of any evidentiary support for such a position. “[T]he
Board cannot simply reach conclusions based on it 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 In re Lee, 277 F.3d 1338, 1344-45, 61 USPQ2d 1430,
1434-35 (Fed. Cir. 2002), 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
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