Appeal No. 2004-2199
Application No. 09/896,043
1435. See Smiths Indus. Med. Sys., Inc., v. Vital Signs, Inc.,
183 F.3d 1347, 1356, 51 USPQ2d 1415, 1421 (Fed. Cir.
1999)(Bozek's reference to common knowledge "does not in and of
itself make it so" absent evidence of such knowledge).
Although we do not have before us an assertion of common
knowledge and common sense in the art as in In re Lee, the
examiner has made an analogous assertion that the questioned
feature was well known in the art. Correspondingly, the
examiner's assertion appears to us to be a substitute for actual
evidence to prove the examiner's assertion. More recently,
however, the court expanded its reasoning in In re Thrift, 298
F.3d 1357, 1363-64, 63 USPQ2d 2002, 2007-08 (Fed. Cir. 2002).
Although we have reproduced representative independent claim
10 earlier in this opinion because it most closely corresponds to
the summary of the invention at specification page 5,
corresponding features are recited in the other independent
claims 1 and 19 on appeal. Even though claim 1 recites the
4
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