Appeal No. 2002-0001
Application No. 08/989,674
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). The court in Lee requires evidence for the
determination of unpatentability by clarifying that "common
knowledge and common sense," as mentioned in In re Bozek, 416
F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969), may only be
applied to analysis of the evidence, rather than be a substitute
for evidence. Lee, 277 F.3d at 1345, 61 USPQ2d at 1435. See
Smiths Indus. Med. Sys., Inc., v. Vital Signs, Inc., 183 F.3d
1347, 1356, 51 USPQ2d 1415, 1421 (Fed. Cir. 1999)(Bozek's
reference to common knowledge "does not in and of itself make it
so" absent evidence of such knowledge).
Because we have reversed the rejection under 35 U.S.C.
§ 102 of independent claims 1, 5 and 9 on appeal, we also reverse
the respective rejection of their dependent claims under 35
U.S.C. § 102, and the separately stated rejection under 35 U.S.C.
§ 103 of dependent claims 4, 8 and 12 on the basis of Martin
alone.
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