Appeal No. 1998-2866
Application No. 08/548,441
Circuit, even if there is reference in a rejection to knowledge
in the art or common knowledge, this does not in and of itself
make it so, absent evidence of such knowledge. See In re Lee,
277 F.3d 994, 1342-43, 61 USPQ 1430, 1434 (Fed. Cir. 2002).
Clearly, what is lacking in the examiner’s respective
rejections based upon Johnson alone and in combination with Obata
is evidence that, at the time of appellants’ invention, those
having ordinary skill in the art considered magnetically readable
data arrangements and optically readable data arrangements as
alternatives. In other words, while Johnson explicitly teaches a
magnetically readable data system and Obata focuses upon an
optical information reading apparatus, there is nothing in the
relied upon body of evidence that reveals magnetically readable
data systems and optically readable data systems as recognized
alternatives in the art and, hence, suggestive of a modification
of the Johnson teaching. Absent the requisite evidence of
obviousness, the examiner’s rejections as cast cannot be
sustained.
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