Appeal No. 96-2270
Application 08/073,108
Here, independent claims 14 and 40 are directed to a medical
system which includes a suction canister having a suction port
and a patient port while independent claim 35 is directed to a
method for handling medical waste which includes the step of
collecting fluid from a patient in a stand-alone canister having
a suction port and a patient port and, accordingly, the specif-
ically claimed canister forms a part of the claimed medical
system and method. The examiner, however, has not provided a
factual basis for establishing that it would have been obvious to
employ the cleaning device of Keller to clean this specifically
claimed suction canister. “A rejection based on section 1034
must rest on a factual basis, and these facts must be interpreted
without hindsight reconstruction of the invention from the prior
art. . . . [The examiner] may not . . . 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 short, it does not follow that just
4While there is nothing in the prior art relied on by the
examiner for establishing that a suction canister having a
suction port and a patient port is old or well known in the art,
we observe that the appellants on page 1 of the specification
have indicated that such canisters have been previously been
employed to drain bodily fluid from a patient.
5
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