Appeal No. 97-0816
Application 08/204,715
multiple layer, percentage and light transmission limitations set
forth in claim 1. Rejections based on 35 U.S.C. § 103 must rest
on a factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 177-78 (CCPA 1967). In making such a rejection, the
examiner has the initial duty of supplying the requisite factual
basis and may not, because of doubts that the invention is
patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in the factual
basis. Id. In the present case, it is apparent that the examiner
has resorted to hindsight reconstruction to supply the above
noted deficiencies in the Arvidson container vis-á-vis the
container recited in claim 1.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103 rejection of claim 1, or of claims 2 and 8 which depend
therefrom, as being unpatentable over Arvidson in view of Baird,
Yum and Kirshenbaum.
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