Appeal No. 2003-1622
Application No. 09/146,529
Processing Corp. v. American Maize-Prods. Co., 840 F.2d 902, 907, 5 USPQ2d
1788, 1792 (Fed. Cir. 1988).
When determining obviousness, "the [E]xaminer can satisfy the burden of
showing obviousness of the combination `only by showing some objective teaching in
the prior art or that knowledge generally available to one of ordinary skill in the art would
lead that individual to combine the relevant teachings of the references.‘" In re Lee,
277 F.3d 1338, 1343, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002), citing In re Fritch,
972 F.2d 1260, 1265, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992). "Broad conclusory
statements regarding the teaching of multiple references, standing alone, are not
‘evidence.'” In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999). "Mere denials and conclusory statements, however, are not sufficient to establish
a genuine issue of material fact." Dembiczak, 175 F.3d at 999-1000,
50 USPQ2d at 1617, citing McElmurry v. Arkansas Power & Light Co., 995 F.2d
1576, 1578, 27 USPQ2d 1129, 1131 (Fed. Cir. 1993).
Further, as pointed out by our reviewing court, we must first determine the scope
of the claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d
1362,1369, 47 USPQ2d 1523, 1529 (Fed. Cir. 1998). As above, we find that the
examiner has not addressed the timing aspect of the claimed invention and while the
examiner may use the random program in the analysis of the Holmann system, we find
no persuasive showing concerning the limitations discussed above. Therefore, we
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