Appeal No. 2002-2082
Application No. 09/289,393 Page 11
characteristics of the flow rate sensor are stably maintained
over a long time period.” Thus, appellants’ specification sets
forth the benefits of spacing the upstream holes further from the
heater element than the downstream holes. The limitation
regarding spacing the upstream holes further apart from the
heating element than the downstream holes is a structural
limitation that should have been given weight by the examiner.
The examiner's unsupported, conclusionary, statement regarding
obvious design choice is not a substitute for evidence. As the
examiner has not pointed to any teaching or suggestion in the
prior art that would have suggested spacing the upstream holes
farther from the heater element than the downstream holes, we
find that the examiner has failed to establish a prima facie case
of obviousness of independent claim 9, and claim 10, dependent
therefrom. Accordingly, the rejection of claims 9 and 10 under
35 U.S.C. § 103(a) is reversed.
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