Appeal No. 96-3999 Page 12
Application No. 08/395,719
Cir. 1988). 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.
Pepicelli discloses a container for growing anaerobic
microorganisms having a cone-shaped dish 10 and a matching
cone-shaped cover 12 that define between them a prescribed
volume. An overflow trough 20 surrounds the dish, and the
peripheries of the dish and cover seal together by excess agar
medium carrying the organisms squeezed from the volume as the
cover is applied to the dish. The colonies of organisms can be
viewed either through the dish or cover because each is
transparent. As shown in figure 4a, the cover 12 has an outer
wall or skirt 62 has an inner diameter which is slightly larger
than the outer diameter of the wall 32 of the base 10 so that the
cover may easily be placed in position on the base. Pepicelli
teaches (column 4, lines 8--12) that the
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