Appeal No. 2002-0262
Application No. 09/127,785
The test for an implicit showing is what the combined
teachings, knowledge of one of ordinary skill in the art, and the
nature of the problem to be solved as a whole would have suggested
to those of ordinary skill in the art. See In re Keller, 642 F.2d
413, 425, 208 USPQ 871, 881 (CCPA 1981) (and cases cited therein).
Whether the PTO relies on an express or an implicit showing, it
must provide particular findings related thereto. See In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2D 1614, 1617 (Fed. Cir.
1999). Broad conclusory statements standing alone are not
"evidence." Id.
The examiner bears the burden of establishing this implicit
teaching in the prima facie case of obviousness. In the absence
of any evidence, the examiner has not borne the burden, and we are
constrained to reverse this rejection.
II. The Rejection of Claims 1 and 3 under 35 U.S.C. §103(a)
as being unpatentable over Cooper.
The examiner has found that Cooper teaches an alkaline
electric storage cell having composite positive and negative
pocket plates separated by composite separators. (Examiner’s
Answer, page 5, last 2 lines). The examiner has additionally
found that there is an absorbent separator material whose lower
edge dips down into the electrolyte and therefore an extended
separator is disclosed (Examiner’s Answer, page 6, lines 9-15).
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