Appeal No. 98-2117 Page 4
Application No. 08/370,170
and these facts must be interpreted without hindsight
reconstruction of the invention from the prior art. . . . [The
examiner] may not . . . resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in . . . [the] . . . factual basis.” In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389
U.S. 1057 (1968).
Each of the above-noted rejections is bottomed on the
examiner's view that Redman teaches a glazing leg 42 having a
pair of substantially flat, planar glazing surfaces that extend
substantially perpendicular to the planar surface of the frame
members. In support of this position the examiner attached to
the answer a greatly enlarged view of Fig. 4 of Redman as
EXHIBIT A and labeled the surfaces believed to be flat and
planar as 9A and 9B (in red ink).
In our view, the examiner's position is based on
speculation. It is of course true that (1) a claimed invention
may be anticipated or rendered obvious by a drawing in a
reference, whether the drawing disclosure be accidental or
intentional, and (2) a drawing is available as a reference for
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