Appeal No. 96-1489
Application 08/139,876
conclusion, not merely per se rules, which rationale the
examiner has not persuasively argued to us.
The prior art relied upon by itself does not suggest the
desirability of the proposed modification. In re Fritch,
972 F.2d 1260, 1266, 23 F.2d 1780, 1783-84 (Fed. Cir. 1992).
In order for us to sustain the examiner’s rejection under
35 U.S.C. § 103, we would need to resort to speculation or
unfounded assumptions or rationales to supply deficiencies in
the factual basis of the rejection before us. In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert.
denied, 389 U.S. 1057 (1968), rehearing denied, 390 U.S. 1000
(1968).
In view of the foregoing, the decision of the examiner
rejecting claims 1-6 under 35 U.S.C. § 103 is reversed.
REVERSED
JAMES D. THOMAS )
Administrative Patent Judge )
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