Appeal No. 1996-3918
Application No. 08/232,351
result in a total reconstruction of the backboard and rim
structure of the prior art of Fig. 2 and, in our view, is
based on hindsight. As to proposal (2), obviousness under §
103 is a legal conclusion based on factual evidence (In re
Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir.
1988)) and the examiner may not resort to speculation (e.g.,
theorizing that a limitation is of "no particular
significance") to supply a deficiency in the factual basis
(see In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178
(CCPA 1967)).
With respect to claim 14 (i.e., Rejection (3)), we have
carefully reviewed the teachings of Chervenka and Willard but
find nothing therein which would overcome the deficiencies of
the prior art of Fig. 2 and White that we have noted above.
In view of the foregoing, we will not sustain the
rejections under 35 U.S.C. § 103 of claims 1, 3-5, 8, 9, 11-
13, 15, 16 and 21 based on the combined teachings of the prior
art of Fig. 2 and White (i.e., Rejection (2)) and claim 14
based on the combined teachings of the prior art of Fig. 2,
White, Chervenka and Willard (i.e., Rejection (3)).
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