Appeal No. 2003-1249
Application 09/386,972
686, 690, 133 USPQ 360, 364 (CCPA 1962). “‘Common knowledge and
common sense,’ even if assumed to derive from the agency’s
expertise, do not substitute for authority when the law requires
authority.” In re Lee, 277 F.3d 1338, 1345, 61 USPQ2d 1430, 1435
(Fed. Cir. 2002).
The examiner, therefore, has not established that one of
ordinary skill in the art would have combined the teachings of
Konuma, Itoh and Watkins to arrive at the appellant’s claimed
method. Accordingly, we reverse the rejection of independent
method claims 4 and 11 and the claims which depend therefrom.
Device claims 17 and 23
The examiner argues that the device claims “are unpatentable
since the appellant has shown no difference between the display
devices as manufactured by the process therein and that of Konuma
as modified by the teachings of Itoh and Watkins” (answer,
pages 6-7). This argument is not well taken because, as
discussed above regarding the method claims, the examiner has not
established that one of ordinary skill in the art would have
combined the teachings of Konuma, Itoh and Watkins. We therefore
reverse the rejection of independent device claims 17 and 23 and
the claims which depend therefrom.
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