Appeal No. 97-0925 Page 10
Application No. 08/328,159
The obviousness issue
We will not sustain the examiner's rejection of claims 1, 5,
9 and 13 under 35 U.S.C. § 103 as being unpatentable over Rowsey.
Obviousness is established by presenting evidence that the
reference teachings would appear to be sufficient for one of
ordinary skill in the relevant art having the references before
him to make the proposed combination or other modification. See
In re Lintner, 9 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Furthermore, the conclusion that the claimed subject matter is
prima facie obvious must be supported by evidence, as shown by
some objective teaching in the prior art or by knowledge
generally available to one of ordinary skill in the art that
would have led that individual 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
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