Appeal No. 97-0734 Page 9
Application No. 08/058,592
upon sheer speculation. However, 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).
For the reasons set forth above, the decision of the
examiner to reject claims 1 through 23 under 35 U.S.C. § 103
is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 7 and 9 under 35 U.S.C. § 112, second paragraph, is
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