Appeal No. 99-0618 Page 7
Application No. 08/797,496
relative to the shelf in an easier manner
[answer, page 5].
We have carefully reviewed the prior art (Celeste and
Gebka) relied upon by the examiner as evidence of obviousness
and we find therein neither a teaching to provide a slot
within the top surface of the shelf protector of Celeste nor
any suggestion to use one of the holes in a regular array of
holes in a shelf in association with a fastener and a slot in
the protector, to fasten the shelf protector to the shelf.
Further, we do not find that either Celeste or Gebka
appreciated any advantage in providing an adjustable
connection of the shelf protector to the shelf.
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In making such a rejection, the 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.
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177-78 (CCPA
1967).
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