Appeal No. 99-1962
Application 08/671,463
11-13 on appeal should not be sustained. Our reasons follow.
Initially, for purposes of our discussion of the
examiner’s rejection, we will presume that the distal end of
the flange of Butler’s fuel nozzle guide 105 includes ribs
like those shown in prior art Figures 5 and 6 of the present
application. This being the case, the only asserted
difference between Butler and representative claim 11 is the
requirement that the trailing end of each of the ribs of the
flange be arcuate in shape, wherein the arcuate trailing ends
facilitate a reduction in film cooling air vortices as film
cooling air passes between the ribs.
It is by now well settled that a rejection based on 35
U.S.C. § 103 must rest on a factual basis, with the facts
being interpreted without hindsight reconstruction of the
invention from the prior art. In making this evaluation, the
examiner has the initial duty of supplying the factual basis
for the rejection he advances. He may not, because he 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, 178 (CCPA 1967), cert. denied, 389
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