Appeal No. 1998-3007 Page 12
Application No. 08/690,994
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).
The appellant argues that the examiner has not set forth
a prima facie case of obviousness with regard to claims 13 and
15 to 22. We agree.
With regard to claim 13, and claims 16 to 18 and 21
dependent thereon, it is our opinion that the applied prior
art would not have suggested the scoop "extending from said
front end of said head section past said eyes." In that
regard, the examiner's determination that the above-noted
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