Appeal No. 1999-0639 Page 5
Application No. 08/592,109
[t]here are only two possible locations for the
slot, the ladder rail or the ladder foot. It would
be desirable to locate the slot in the ladder rail
since the rail would require only one piece to be
cut, whereas locating the slot in the ladder foot
would require two pieces to be cut and create
potential for slot misalignment due to bending of
the parallel ladder foot members" [answer, page 7].
The appellant argues, inter alia, that there is no basis
in the prior art to arrive at the appellant's invention and
that the examiner's conclusion of obviousness is grounded upon
impermissible hindsight (brief, page 16). We agree with the
appellant.
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 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968).
The only rationale offered by the examiner to support the
conclusion that the proposed modification would have been
obvious is that location of the non-linear slot in the rail
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