Appeal No. 2002-1583 Page 8
Application No. 09/299,678
With regard to the examiner's argument (answer, pp. 5-6) that it is common in
the art to provide multiple level indicators to indicate levelness in multiple directions, we
note that such evidence was not applied in the rejection before us in this appeal and
thus is not before us. Moreover, the examiner has not cited any actual evidence to
support the examiner's position as to what is common in the art. A broad conclusory
statement regarding the obviousness of modifying a reference, standing alone, is not
"evidence." 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).
For the reasons set forth above, the decision of the examiner to reject claim 1,
and claims 2 to 5 dependent thereon, under 35 U.S.C. § 103 is reversed.
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