Appeal No. 97-2888
Application 08/389,077
would have led an artisan to construct the support rods shown
by Heffington as multi-piece elements including the extension
plates recited by claims 13-15, 40 and 43. It is our view
that the
examiner's determination of obviousness is based on
speculation,
unfounded assumption and/or impermissible hindsight
reconstruc-tion to supply the deficiencies in the factual
basis for the rejection.6
With respect to claim 23, appellant argues (Brief, page
15) that neither Michelson '943 nor Heffington disclose or
suggest a pair of lateral support panels extending from the
major posterior support member. We agree. Accordingly, we
will not sustain this ground of rejection.
For the foregoing reasons, the examiner’s rejection of
6Rejections 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, 177 (CCPA 1967), cert.
denied, 389 U.S. 1057 (1968).
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