Appeal No. 97-3555 Page 9
Application No. 08/534,692
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).
The teachings of the prior art applied by the examiner in
the rejection of the claims on appeal are set forth in the
appellants' brief (pp. 9 and 21) and the examiner's answer (pp.
5-8).
With regard to independent claims 1 and 26, we agree with
the appellants' argument (brief, pp. 10-15 and 25-26) that the
applied prior art does not suggest suspending the bottom of the
food dish or pie tin above the floor of the receiving shell.
Accordingly, the subject matter of claims 1 and 26 and their
dependent claims (i.e., claims 2 to 14 and 27) would not have
been prima facie obvious under 35 U.S.C. § 103.
With regard to independent claim 15, we agree with the
appellants' argument (brief, pp. 21-22) that the applied prior
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