Appeal No. 1997-1693
Application No. 08/254,667
claim language by suggesting (Answer, page 5) that Itaru’s
chip package can be "flipped over" so that the upper and lower
regions are reversed only serves to support Appellants’
position as to nonobviousness of the proposed combination. We
are in agreement with Appellants, for all of the reasons
expressed at page 2 of the Reply Brief, that the flipped over
version of Itaru cannot function in the same manner as the
original structure illustrated in Itaru’s Figure 2.
In summary, we are left to speculate why one of ordinary
skill would have found it obvious to modify the applied prior
art to make the combination suggested by the Examiner. The
only reason we can discern is improper hindsight
reconstruction of Appellants’ claimed invention. In order for
us to sustain the Examiner’s rejection under 35 U.S.C. § 103,
we would need to resort to speculation or unfounded
assumptions or rationales to supply deficiencies in the
factual basis of the rejection before us. In re Warner, 379
F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert.
denied, 389 U.S. 1057 (1968), reh'g denied, 390 U.S. 1000
(1968). Since we are of the view that the prior art applied
by the Examiner does not support the rejection, we do not
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