Appeal No. 95-4738
Application No. 08/146,868
and these facts must be 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, 177 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968). Since
the examiner has not provided any factual basis as to why one
skilled in the art would have integrally formed Bishop's back-up
ring 33 as part of the bottom wall of can 3, we will not sustain
the rejection of independent claim 1 under 35 U.S.C. § 103.
Likewise, we will not sustain the rejections of dependent claims
2 and 4 through 13 under 35 U.S.C. § 103.
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