Appeal No. 1998-2834
Application 08/659,858
frequency peak for placement against and removal
from the skin. Therefore, it is the Examiner’s
position that it would have been obvious to one of
ordinary skill in the art to do the same.
Legal conclusions of obviousness must be supported by
facts. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178
(CCPA 1967). An examiner has the initial burden of supplying
the requisite factual basis and may not, because of doubts
that the claimed invention is patentable, resort to
speculation, unfounded assumptions or hindsight reconstruction
to supply deficiencies in the factual basis. Id.
In the present case, the examiner has failed to advance
any factual basis to support his conclusion that it would have
been obvious to one of ordinary skill in the art to relect an
adhesive for the modified Kao KK absorbent article that would
have the properties called for in claims 22 and 26. In
essence, the examiner's conclusion of obviousness is based on
nothing more than pure speculation. Accordingly, the standing
rejection of claims 22 and 26 as being unpatentable over Kao
KK in view of Kenney cannot be sustained.
Claims 21 and 28
These claims depends from claim 18 and add details
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