Appeal No. 2001-2268
Application 08/922,581
differences between the claimed invention and the teachings of
the prior art as being obvious. The examiner must present us
with an evidentiary record which supports the finding of
obviousness. It does not matter how strong the examiner’s
convictions are that the claimed invention would have been
obvious, or whether we might have an intuitive belief that the
claimed invention would have been obvious within the meaning of
35 U.S.C. § 103. Neither circumstance is a substitute for
evidence lacking in the record. Whether there is prior art
available which would render these appealed claims unpatentable
we cannot say. We can say, however, that the record presently
before us does not support the rejection as formulated by the
examiner.
In summary, we have not sustained the rejection of claims
24-28 under 35 U.S.C. § 112. The rejection of claims 1, 3, 6,
10, 29, 37 and 43 under 35 U.S.C. § 102(b) has been sustained
with respect to claims 1, 3, 6 and 37, but has not been sustained
with respect to claims 10, 29 and 43. The rejection of claims 4,
5, 9, 11 and 16-23 under 35 U.S.C. § 103 has not been sustained.
Therefore, the decision of the examiner rejecting claims 1, 3-6,
9-11, 16-29, 37 and 43 is affirmed-in-part.
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