Appeal 2006-2033
Application 10/116,774
We find similar deficiencies with respect to the disclosure of Armga.
The Examiner suggests (Answer, page 12) that, since Armga is directed to
providing a uniform visual display over a variety of display devices having
differing screen sizes, display position information can not be
accommodated with fixed position information but, rather, would require
relative location information. We find, however, no evidence forthcoming
from the Examiner that would support such a conclusion. In our view, the
evidence of record, in particular, the Moore reference discussed supra,
would indicate that, contrary to the Examiner’s contention, the
implementation of a uniform display across devices with different display
sizes does not necessarily mean that relative location information for the
display elements must be used to the exclusion of fixed position as required
by the claims on appeal.
It is well settled that “the Board cannot simply reach conclusions
based on it own understanding or experience - or on its assessment of what
would be basic knowledge or common sense. Rather, the Board must point
to some concrete evidence in the record in support of these findings.” In re
Zurko, 258 F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001). See
also In re Lee, 277 F.3d 1338, 1344-45, 61 USPQ2d 1430, 1434-35 (Fed.
Cir. 2002), in which the court required evidence for the determination of
unpatentability by clarifying that the principles of “common knowledge” and
“common sense” may only be applied to analysis of evidence, rather than be
a substitute for evidence. The court further expanded their reasoning on this
topic in In re Thrift, 298 F. 3d 1357, 1363, 63 USPQ2d 2002, 2008 (Fed.
Cir. 2002).
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