Appeal No. 2001-2110
Application No. 09/095,462
position of the camera such that the camera has one lens with a
photo-receiver for forward view in order to observe the condition
of the traffic in front of the car.”
It is well settled that “the Board cannot simply reach
conclusions based on it own understanding or experience - or on its
assessment of what would be basic knowledge or common sense.
Rather, the Board must point to some concrete evidence in the
record in support of these findings.” In re Zurko, 258 F.3d 1379,
1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001). See also In re Lee,
277 F.3d 1338, 1344-45, 61 USPQ2d 1430, 1434-35 (Fed. Cir. 2002),
in which the court required evidence for the determination of
unpatentability by clarifying that the principles of “common
knowledge” and “common sense” may only be applied to analysis of
evidence, rather than be a substitute for evidence. The court has
also recently expanded their reasoning on this topic in In re
Thrift, 298 F.3d 1357, 1363, 63 USPQ2d 2002, 2008 (Fed. Cir. 2002).
We recognize that the Examiner, at page 5 of the “Response to
Argument” portion of the Answer, has buttressed the assertion of
obviousness by arguing that a mere change in position of an
element, such as moving the video camera to provide a front view in
the present factual situation, is not entitled to patentable
weight. It is our view, however, that the Examiner has improperly
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