Appeal No. 1998-1533 Page 5
Application No. 08/411,202
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, 178 (CCPA 1967),
cert. denied, 389 U.S. 1057 (1968).
With this as background, we turn to the rejections of the
claims on appeal made by the examiner.
Claims 1 to 3
We will not sustain the rejection of claims 1 to 3 under
35 U.S.C. § 103.
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