Appeal No. 2000-0526
Application No. 08/818,958
inserted into the patient straight up and down at times
(answer, page 5).
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).
As recognized by the examiner, Farris I does not teach
placing the gas trap chamber on the rear wall of the syringe.
In fact, Farris teaches that the air trap chamber is
positioned on one side of the container in a location that is
generally perpendicular to the direction that the container is
squeezed to collapse it (column 2, lines 41-44). This
teaching would appear to suggest that the rear wall might not
be a suitable location for the gas trap chamber and that the
"various locations" referred to in column 4, line 40, may, in
fact, be limited to locations on the side (peripheral) wall
12d, for example. We also note that the examiner has not
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