Appeal No. 98-0002
Application No. 08/300,089
We are in agreement with the examiner's finding that the
German reference is silent with respect to using the laser to
kill pests behind a solid barrier. In fact, there is not a
scintilla of evidence in the German patent that a barrier is
contemplated in the method disclosed therein. We note that
the German reference is directed to killing swarms of locusts
which swarms are present in the open air. Inasmuch as the
examiner may not resort to speculation, unfounded assumptions
or hindsight reconstruction to support deficiencies in the
factual basis of a rejection under 35 U.S.C. § 103, see In re
GPAC Inc., 57 F.3d 1573, 1582, 35 USPQ2d 1116, 1123
(Fed. Cir. 1995), we are constrained to reverse the rejection
on appeal as it rests on no factual basis we can ascertain.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
WILLIAM F. PATE, III ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
JOHN P. McQUADE )
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