Appeal No. 96-1441
Application 08/096,458
invention is patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in the factual basis. Id.
To the extent that the shelf supports 20, 21 on the
sidewalls 17, 18 of Jenkins’ liner 14 can be viewed as
defining slots therebetween, the examiner concedes that such
slots do not extend into a plane of the sidewalls away from
the interior of the refrigeration device or cabinet as recited
in claims 1 and 16. Nonetheless, the examiner concludes that
to modify the Jenkins liner so as to provide for this recited
feature would have been suggested by Trevitt and/or an obvious
matter of design choice. The combined teachings of Jenkins
and Trevitt, however, do not provide the factual basis
necessary to support the examiner’s conclusion. The
document/book case disclosed by Trevitt has little in common
with the refrigerator cabinet liner disclosed by Jenkins. The
only suggestion for combining the disparate teachings of these
two references in the manner proposed by the examiner stems
from impermissible hindsight knowledge derived from the
appellant’s own disclosure. The examiner’s rationale that
such modification would provide the liner with more insulating
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