Appeal No. 1998-1452
Application 08/408,006
USPQ 173, 177-78 (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, the
examiner’s attempt (see pages 4 through 7 in the answer) to
supply the aforementioned deficiencies in Nozaki and Lynch
relative to the subject matter recited in claim 1 is fraught
with speculation, unfounded assumptions and hindsight
reconstruction.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejections of claim 1 or of claims 2, 4 through 7
and 11 through 13 which depend therefrom.
The decision of the examiner is reversed.
REVERSED
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