Appeal No. 2001-1679 Page 7
Application No. 08/849,336
there is no evidence in the record that even if it would have been obvious to have
modified either Lister or Kümmerlin to have a stepping platform with the front and rear
rims rolled over to form a cylindrical pipe that it would have been obvious at the time the
invention was made to a person of ordinary skill in the art to have welds at locations
where ends of the cylindrical pipes abut the plate members bent downward at the side
rims.4
Since the subject matter of claim 6 is not rendered obvious by the applied prior
art for the reasons set forth above, the decision of the examiner to reject claim 6 under
35 U.S.C. § 103 is reversed.
We have also reviewed the reference to Miller additionally applied in the rejection
of claims 7 and 8 (dependent on claim 6) but find nothing therein which makes up for
4 Evidence of a suggestion, teaching, or motivation to modify a reference may flow from the prior
art references themselves, the knowledge of one of ordinary skill in the art, or, in some cases, from the
nature of the problem to be solved, see Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568,
1573, 37 USPQ2d 1626, 1630 (Fed. Cir. 1996), Para-Ordinance Mfg., Inc. v. SGS Importers Int'l., Inc., 73
F.3d 1085, 1088, 37 USPQ2d 1237, 1240 (Fed. Cir. 1995), cert. denied, 117 S. Ct. 80 (1996), although
"the suggestion more often comes from the teachings of the pertinent references," In re Rouffet, 149 F.3d
1350, 1355, 47 USPQ2d 1453, 1456 (Fed. Cir. 1998). The range of sources available, however, does not
diminish the requirement for actual evidence. That is, the showing must be clear and particular. See,
e.g., C.R. Bard Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1352, 48 USPQ2d 1225, 1232 (Fed. Cir. 1998), cert.
denied, 119 S. Ct. 1804 (1999). A broad conclusory statement regarding the obviousness of modifying a
reference, standing alone, is not "evidence." Thus, when an examiner relies on general knowledge to
negate patentability, that knowledge must be articulated and placed on the record. See In re Lee, 277
F.3d 1338, 1342-45, 61 USPQ2d 1430, 1433-35 (Fed. Cir. 2002). See also In re Dembiczak, 175 F.3d
994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999).
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