Appeal No. 97-2227
Application 08/254,978
common gear train as the third and fourth gears will
be
inefficient because of the long drive train to the
final drive gear. In view of the above
consideration, it would have been obvious to one of
ordinary skill in the art to provide Atfield et al
with a second drive train, separate and independent
of the first drive train, between the shaft and drum
to obtain a more efficient second drive train as
well as to reduce wear and tear on the gears
comprising the first drive train. [Answer, pages 4
and 5.]
We must point out, however, that obviousness under § 103
is a legal conclusion based on factual evidence (In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988)) and
the examiner may not resort to speculation or unfounded
assumptions to supply deficiencies in establishing a factual
basis (see In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
178 (CCPA 1967)). The mere fact that, generally speaking, (1)
a second drive train which has a common gear train with the
third and fourth gears might be inefficient or (2) that
providing a second drive train which is separate and
independent of the first drive train would reduce wear and
tear, does not provide a sufficient basis for concluding that
such an arrangement would have been “obvious.” Instead, it is
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