Appeal No. 1999-1765 Page 12
Application No. 08/839,193
ordinary skill in the relevant art having the references
before him to make the proposed combination or other
modification. See In re Lintner, 458 F.2d 1013, 1016, 173
USPQ 560, 562 (CCPA 1972). Furthermore, the conclusion that
the claimed subject matter is prima facie obvious must be
supported by evidence, as shown by some objective teaching in
the prior art or by knowledge generally available to one of
ordinary skill in the art that would have led that individual
to combine the relevant teachings of the references to arrive
at the claimed invention. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). 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). Our reviewing court has
repeatedly cautioned against employing hindsight by using the
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