Appeal No. 2000-0604
Application No. 08/483,735
opening in the bottom cover 11. Consequently, we share
appellants' view that the examiner's characterization of the
top cover 1, four side covers 2 and bottom cover 11 as a
delivery housing having an opening in the bottom cover as
required by claims 43 and 44 is not well founded.
Moreover, with particular regard to method claim 43, the
examiner's position that, notwithstanding the teaching by
Burgess that the device should typically be installed just
below ground level, placement of the entire device into the
ground is not likely "because the size of the hole would have
to be much larger to put the delivery housing into the ground
than just the target surface" (answer, page 4), appears to us
to be based upon unfounded assumptions or speculation.
Rejections based on 35 U.S.C. § 103 must rest on a factual
basis. In making such a rejection, the examiner has the
initial duty of supplying the requisite factual basis and may
not, because of doubts that the invention is patentable,
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). In this instance,
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