Appeal No. 2002-1792 Page 10
Application No. 09/467,577
system of both Lenhart '307 (rails 22 supported by brackets as shown in Figure 1) and
Fairman (guide rails 71 and 72 supported by arms 63 as shown in Figures 1-2) as an
elongated plate. We do not agree since the examiner has not provided any evidence
in these rejections why the proposed modification would have been obvious at the time
the invention was made to a person of ordinary skill in the art.
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. A broad conclusory statement regarding the obviousness of modifying
a reference, standing alone, is not "evidence." 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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