Ex parte WITT et al. - Page 5




          Appeal No. 1998-1431                                       Page 5           
          Application No. 08/665,162                                                  

          before him to make the proposed combination or other                        
          modification.  See In re Lintner, 9 F.2d 1013, 1016, 173 USPQ               
          560, 562 (CCPA 1972).  Furthermore, the conclusion that the                 
          claimed subject matter is prima facie obvious must be                       
          supported by evidence, as shown by some objective teaching in               
          the prior art or by knowledge generally available to one of                 
          ordinary skill in the art that would have led that individual               
          to combine the relevant teachings of the references to arrive               
          at the claimed invention.  See In re Fine, 837 F.2d 1071,                   


          1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).  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, 177 (CCPA 1967),              
          cert. denied, 389 U.S. 1057 (1968).  Our reviewing court has                
          repeatedly cautioned against employing hindsight by using the               








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