Appeal No. 1999-0946
Application No. 08/693,641
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,
177 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
With this as background, we turn to the rejection of the claims on appeal.
In rejecting claim 1, the examiner has taken the position that Orimoto teaches a
preform that may be made of various plastic materials including polyethylene naphthalate
or polyethylene terephthalate and which is blow molded to form a bottle. The preform has
a threaded outer surface for receiving a closure. However, Orimoto does not teach the
claimed spaced inner and outer walls with a gap therebetween. Hall teaches a molded
5
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