Appeal No. 1996-3880 Page 5
Application No. 08/305,441
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.
Richardson discloses a set of pencils that are provided
tongues and grooves to enable several pencils to be picked up
en bloc but are easily separated when required for individual
use. As shown in Figure 1, the pencils are differently
colored and have a substantially rectangular shape.
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