Appeal No. 96-1879
Application 08/006,194
Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.
Cir. 1984).
Additionally, rejections based on § 103 must rest on a
factual basis with these facts being interpreted without
hindsight reconstruction of the invention from the prior art.
The examiner has the initial duty of supplying the factual basis
for the rejection. The examiner may not, because of doubt that
the invention is patentable, resort to speculation, unfounded
assumption or hindsight reconstruction to supply deficiencies in
the factual basis. See In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
Our reviewing court has repeatedly cautioned against employing
hindsight by using the appellants' disclosure as a blueprint to
reconstruct the claimed invention from the isolated teachings in
the prior art. See, e.g., Grain Processing Corp. v. American
Maize-Prods. Co., 840 F.2d 902, 907, 5 USPQ2d 1788, 1792 (Fed.
Cir. 1988).
Our review of the evidence of obvious applied by the
examiner in the rejection of the claims on appeal reveals that
a test carrier comprising first and second absorbent layers
attached to one another by adhesive patterns is disclosed by
Hiratsuka, that hot melt adhesive is known in the art to attach
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007