Appeal No. 97-4185 Page 5
Application No. 08/602,274
USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d
413, 425, 208 USPQ 871, 881 (CCPA 1981). The conclusion that
the claimed subject matter is 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 Warner, 379
F.2d 1011, 1017, 154 USPQ 173, 177 (CCPA 1967), cert. denied,
389 U.S. 1057 (1968).
With this as background, we analyze the prior art applied
by the examiner in the rejection of the claims on appeal.
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