Appeal No. 97-1973
Application No. 08/248,003
specified and required by appealed claim 4. Accordingly, we 5
cannot sustain the stated rejection of claim 4 based on the
disclosures in Gray, Whisler and Von Bolhar.6
Claims 5 through 8 are dependent on claim 4 and contain
all of the limitations of that claim. Accordingly, the
examiner’s rejection of claims 5 through 8 under 35 U.S.C. §
103 will not be sustained.
The decision of the examiner is reversed.
REVERSED
JOHN P. McQUADE )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MURRIEL E. CRAWFORD ) APPEALS AND
5 We note that Von Bolhar neither describes nor illustrates the details
of the lower tumbler 18.
6 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).
8
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