Appeal No. 95-3317
Application No. 07/937,522
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), In re Lalu, 747 F.2d 703, 705, 223 USPQ 1257, 1258
(Fed. Cir. 1984); Ashland Oil, Inc. v. Delta Resins &
Refractories, Inc., 776 F.2d 281, 293, 227 USPQ 657, 664 (Fed.
Cir. 1985), cert. denied, 475 U.S. 1017 (1986) and ACS Hosp.
Sys., Inc. v. Montefiore Hosp., 732 F.2d 1572, 1577, 221 USPQ
929, 933 (Fed. Cir. 1984).
Additionally, 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 has the initial duty of supplying the factual
basis for the rejection. 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. See In re Warner, 379 F.2d
1011, 1017,
154 USPQ 173, 178 (CCPA 1967). Our reviewing court has
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