Appeal No. 97/1235
Application No. 08/316,717
We are in agreement with the examiner's finding that
Phillips shows a water soluble envelope containing pesticide
in an outer container. We are also in agreement with the
examiner's finding that the four secondary references disclose
flexible envelopes in outer containers. However, we disagree
with the examiner's finding that the space between the outer
containers and the envelopes of all the secondary references
is at least 5% of the volume of the container. While we
acknowledge that McClinton appears to show a space of greater
than 5%, we must emphasize that there is no express disclosure
of this feature in any of the secondary references. We must
conclude that this finding of the examiner is based on
speculation in viewing the various figures of the secondary
references. Of course, the examiner may not resort to
speculation and unfounded assumptions to supply deficiencies
in the factual basis of the rejection under 35 U.S.C. § 103.
In re GPAC Inc., 57 F.3d 1573, 1582, 35 USPQ2d 1116, 1123
(Fed. Cir. 1995).
Moreover, even if the McClinton disclosure could be taken
as providing some basis for the examiner's conclusion that a
free space of at least 5% in the outer container would have
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