Appeal No. 2002-2179
Application No. 08/839,861
information. (Final Rejection at 3.) The examiner further asserts that using an “adjunct
system” is admitted to be well known in the instant specification, at Figure 1 and page
2, lines 9 through 15. (Answer at 7.)
We note that the specification draws distinctions between an “adjunct system,”
described at page 2, and the use of GPS receivers, described at page 1, lines 20
through 28. In any event, we agree with appellants there is no showing, on this record,
of suggestion from the prior art to use position information from an adjunct system to
perform dynamic channel allocation, as required by instant claim 5.
The allocation of burdens requires that the USPTO produce the factual basis for
its rejection of an application under 35 U.S.C. § § 102 and 103. In re Piasecki, 745
F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984) (citing In re Warner, 379 F.2d
1011, 1016, 154 USPQ 173, 177 (CCPA 1967)). Although the examiner’s conclusion
that the subject matter as a whole of the claim would have been obvious may appear
sound in hindsight, the required factual foundation for the rejection is lacking. We do
not sustain the rejection of claim 5 under 35 U.S.C. § 103 as being unpatentable over
Ishikawa or Cox.
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