Appeal No. 1999-2727
Application No. 08/809,315
for the disclosed purpose is not unobvious. In re
Leshin 125 USPQ 416.
While appellant does not dispute that the materials
recited in the claims were all known materials at the time of
appellant’s invention, appellant points out that Spratt does
not teach or suggest that all of these materials are suitable
for use as grit in the abrasive coating (brief, page 9).
Appellant further contends, especially with respect to rubber
and textiles, that the examiner has made no showing that the
claimed grains are abrasive (reply brief, page 3).
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 case, the examiner has not provided any evidence
that one skilled in the art at the time of appellant’s
invention would have recognized all of the materials, in
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