Appeal No. 99-0622 Page 8
Application No. 08/637,717
We shall not sustain the rejection of claim 52 under 35
U.S.C. § 103 as being unpatentable over Leach.
Claim 52 recites that the first and second connectors be
interconnected to form junctures which will withstand forces
in excess of approximately 2.5 kN and that the forward and
rearward segments of the belt be interconnected to form a
juncture which will rupture when subjected to a force in
excess of approximately 2.5 kN. Leach does not disclose the
capacity of any of the junctures or connection points of the
restraining device. The examiner submits that "[t]o form the
juncture to withstand a force as desired, would have been an
obvious mechanical expedient" (answer, page 3) and "[t]o
substitute other conventional releasable fastener [sic], e.g.,
buttons, buckles, etc., which will withstand forces as desired
is within the scope of one of ordinary skill in the art"
(answer, page 4).
We note, however, that 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
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