Appeal No. 2000-0856 Page 7
Application No. 08/676,623
claimed subject matter is prima facie obvious must be
supported by evidence. 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 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 for the rejection. See In re Warner, 379 F.2d 1011,
1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S.
1057 (1968).
Since the combination of references as set forth in the
rejection would not have suggested the claimed invention for
the reasons set forth above, the decision of the examiner to
reject claim 2 under 35 U.S.C. § 103 is reversed.3
CONCLUSION
3The examiner's reference to Figure 4 of Miller in the
answer (p. 7) is not germane to the rejection under appeal
since the examiner has not made the determination that it
would have been obvious at the time the invention was made to
a person having ordinary skill in the art to modify the
location of Hancock's aperture 11 in the child seat 10 based
upon Figure 4 of Miller. We leave it to the examiner to
determine if this would or would not be obvious under 35
U.S.C. § 103.
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