Appeal No. 98-1030
Application 08/424,115
however, the appellants have challenged such findings, and
have submitted various materials to support their position
(see pages 7 through 10 in the brief). Although the materials
submitted by the appellants are not all that persuasive for
the reasons expressed by the examiner (see pages 7 through 9
in the answer), the appellants' argument that the applied
references are deficient with respect to the claim limitation
at issue is well taken.
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 178 (CCPA 1967). In making such a rejection, an examiner
has the
initial duty of supplying the requisite factual basis and may
not, because of doubts that the invention is patentable,
resort to speculation, unfounded assumptions or hindsight
reconstruction to supply deficiencies in the factual basis.
Id. In the present case, it is not disputed that the applied
references, and particularly Ohkuwa, fail to contemplate the
virtual image
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