Appeal No. 97-2968
Application 08/531,077
caused by the resulting frictional forces created by
the curtain and belt winding and unwinding against each
other. [Page 4.]
We will not support the examiner’s position. As stated on
page 7 of the specification the polyurethane coating on the belt
“grips to the vinyl material so as to limit slippage of the
curtain relative to belts 35" (lines 22-23). The examiner
recognizes this. Nevertheless, the examiner takes the position
that because other coating compositions are “known” in the art
that would perform “equally as well” (apparently because the
appellant further states on page 7, lines 25 and 26 of the
specification that “other coating compositions which adhere to
vinyl could be substituted”), the particular coating composition
can be dismissed as a matter of design choice. The problem is,
however, that the examiner has provided no evidence whatsoever to
support the position that there are other compositions known in
the art which would perform equally as well as polyurethane as
the examiner asserts. The appellant does not state that such2
other compositions were known in the art as the examiner appears
“A rejection based on section 103 clearly must rest on a factual2
basis, and these facts must be interpreted without hindsight reconstruction of
the invention from the prior art. . . . [The examiner] may not . . . resort
to speculation, unfounded assumptions or hindsight reconstruction to supply
deficiencies in . . . [the] . . . factual basis.” In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057
(1968)).
4
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