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 5Page: Previous 1 2 3 4 5 6 7 8 9 NextLast modified: November 3, 2007