Appeal No. 2002-1140
Application No. 08/947,470
While we agree that Deeran and Bonsall tout the advantages of indicia that are
relatively easy to remove, as pointed out by appellants at pages 11 and 12 of the Brief,
we find no warning in the references, directed to the artisan, that teaches against
indicia on a support plate, rather than on, for example, a custom graphics sheet. Nor
have appellants pointed out any such discouragement in the disclosures. We thus are
not persuaded that the references “teach away” from the instant invention.
However, we agree with appellants to the extent that the evidence relied upon by
the instant rejection is not sufficient to support a prima facie case for obviousness.
Although the APA and the references do not teach away from the instant invention, we
find no disclosure or suggestion for indicia, indicating functions of a plurality of input
keys, printed on the support plate, as required by instant claim 5 (the sole independent
claim on appeal).
The examiner advances various rationales in attempting to make up for the
admitted deficiency in the applied prior art; e.g., Final Rejection at 5-6 and Answer at 6-
7, 9-10. A rejection based on assertions, absent evidence in support of the proposed
combination, could not stand upon further appeal. See In re Zurko, 258 F.3d 1379,
1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001) (in a determination of unpatentability
“the Board must point to some concrete evidence in the record in support
of...[the]...findings”). For example, while one might, in hindsight, glean from appellants’
disclosure that indicia printed on a plate and on a removable template are considered to
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