Appeal No. 2001-1601
Application No. 08/404,406
that Freeburg discloses antenna elements pointing in different
azimuthal directions, and (Answer, page 5) asserts that "[t]he
antenna array elements A-F of Freeburg inherently includes an
omnidirectional elevation direction coordinated with the
plurality of azimuthal directions, which is inherent in the
antenna technology." The examiner, however, fails to provide any
evidence of inherency, despite appellants' argument (Brief, page
8) that Freeburg's antenna beams do not point in both plural
azimuthal and plural elevational directions. In In re Lee, 277
F.2d 1338, 1342-43, 61 USPQ2d 1430, 1433 (Fed. Cir. 2002), the
court held that a factual inquiry whether to modify a reference
must be based on objective evidence of record, not merely
conclusionary statements of the examiner. The same applies to
inherency. Conclusionary statements of the examiner as to
inherency are insufficient; factual evidence of inherency is
required, and such evidence is lacking in the present case.
The examiner asserts (Answer, page 5) that "Freeburg fails
to teach that the array of antenna elements A-F can focus the
beams by narrowing the beam widths in the elevation plane
(pointing in a plurality of elevation directions)." The examiner
relies upon Harbin's teaching that an array of antennas can
achieve more gain by focusing the beam widths in the elevation
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