Appeal No. 2001-1944
Application No. 08/734,857
simply put, more evidence is needed to convince us of the
obviousness of the subject matter of the claims on appeal than
for the examiner to rely upon Schindler and the examiner’s own
arguments.
Our reviewing court has made it clear in In re Lee, 277 F.3d
1338, 61 USPQ2d 1430 (Fed. Cir. 2002), and In re Zurko, 111 F.3d
887, 42 USPQ2d 1476 (Fed. Cir. 1997) that rejections must be
supported by substantial evidence in the administrative record
and that where the record is lacking in evidence, this Board
cannot and should not resort to unsupported speculation. As
indicated in Lee, 277 F.3d at 1343-44, 61 USPQ2d at 1433-34, the
examiner's finding of whether there is a teaching, motivation or
suggestion to combine the teachings of the applied references
must not be resolved based on "subjective belief and unknown
authority," but must be "based on objective evidence of record."
In view of the foregoing, since we are constrained to
reverse the rejection of independent claims 1 and 7 on appeal, we
must also reverse the rejection of dependent claims 2 through 6.
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