Appeal No. 2002-1106
Application 09/058,687
the assigned home channel. Since the home channel is the channel
monitored for subaudio control signals from the repeater, the
mere selection of an idle channel for voice communication does
not suggest that a new home channel is sought and selected as
claimed. Therefore, we agree with appellants that there is no
disclosure in George that a next available home channel is sought
when the assigned home channel is not available.
We now consider the rejection of claims 4, 9 and 14 under
35 U.S.C. § 103 as unpatentable over the teachings of George in
view of Alford. These claims stand or fall together as a single
group [brief, page 4]. In rejecting claims under 35 U.S.C.
§ 103, it is incumbent upon the examiner to establish a factual
basis to support the legal conclusion of obviousness. See In re
Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
In so doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led to
modify the prior art or to combine prior art references to arrive
at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a whole
or knowledge generally available to one having ordinary skill in
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