Appeal No. 2006-1279
Application No. 10/249,005
etc. to distinguish high priority mail as taught in the reference
even when the document within the envelope is folded.
Core factual findings in patentability determinations must
point to some concrete evidence in the record to support the
findings. In re Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697
(Fed. Cir. 2001). In addition, obviousness rejections must be
based on evidence comprehended by 35 U.S.C. § 103. In re Lee,
277 F.3d 1338, 1342, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002)
(emphasis added). See also In re Kahn, 441 F.3d 977, 987,
78 USPQ2d 1329, 1336 (Fed. Cir. 2006) ("[R]ejections on
obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion
of obviousness.").
On this record, the examiner's finding that Berson detects
the entire document content using a detector sensor is
speculative and therefore lacks sufficient evidentiary support.
Because independent claims 1 and 9 both recite detecting the
entire document content with a detector sensor, we will not
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