Appeal No. 97-1143
Application 08/115,881
Covert are located approximately midway between the front and
rear of the frame is erroneous.
We agree with appellants that the examiner's analysis of
the combined teachings of the references is fatally flawed.
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, 178 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968). Our reviewing
court has repeatedly cautioned against employing hindsight by
using the appellant's disclosure as a blueprint to reconstruct
the claimed invention from the isolated teachings of the prior
art. See, e.g., Grain Processing Corp. v. American
Maize-Products Co., 840 F.2d 902, 907, 5 USPQ2d 1788, 1792
(Fed. Cir. 1988). There is simply no
suggestion or motivation in Covert to provide a wheel set
mounted
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