Appeal No. 97-0744 Page 6
Application No. 08/270,851
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 turn to the examiner's
rejection of the claims on appeal. The examiner found
(answer, p. 3) that
Guddee shows the basic structure of the claimed terminal
support device including base 22, 24, 30, 32 defining a
plane adapted to be removably attached to a supporting
surface, first side member 14, 16, 17, second side member
80, 81, and top portion 82 coupled to and extending
orthogonally from the second side member.
The examiner thereafter determined (answer, p. 4) that
[i]t would have been obvious to modify Guddee's device by
mounting Tani's shaft member to Guddee's second side
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