Appeal No. 2002-1103
Application No. 09/580,413
that Fisher is silent as to the amount of this processed butter
which is contained in his peanut butter.
The speculative nature of the Examiner’s above noted statement
renders it incapable of supporting an obviousness conclusion. We
here remind the Examiner that a § 103 rejection must rest upon a
factual basis rather than speculation. See In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S.
1057 (1968).
In summary, we have carefully studied the Examiner’s answer
and supplemental answer. Notwithstanding this endeavor, we do not
find any basis for reaching a determination that the Examiner has
carried her initial burden of establishing a prima facie case of
obviousness. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992). It follows that we cannot sustain
the Examiner’s § 103 rejection of all appealed claims as being
unpatentable over Schumacher in view of Stockton and further in
view of Fisher.
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