Appeal No. 96-3157 Page 15
Application 08/088,136
to combine the relevant teachings of the references to arrive
at the claimed invention. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Rejections based
on
§ 103 must rest on a factual basis with these facts being
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).
With this as background, we analyze the prior art applied
by the examiner in the rejection of the claims on appeal.
Madsen discloses an apparatus for generating a balanced
calorically limited menu. Madsen's invention relates to a
method and apparatus for preparing a series of daily menus
that include foods having preselected characteristics. The
menus are prepared from a list containing numerous food items,
the caloric content of each item, which food group each item
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