Appeal No. 1997-0524
Application No. 08/495,699
In summary, we are left to speculate why one of ordinary
skill would have found it obvious to modify the applied prior
art to make the combination suggested by the Examiner. The
only reason we can discern is improper hindsight
reconstruction of Appellants’ claimed invention. In order for
us to sustain the Examiner’s rejection under 35 U.S.C. § 103,
we would need to resort to speculation or unfounded
assumptions or rationales to supply deficiencies in the
factual basis of the rejection before us. In re Warner, 379
F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied,
389 U.S. 1057 (1968), rehearing denied, 390 U.S. 1000 (1968).
Since we are of the view that the prior art applied by the
Examiner does not support the rejection, we do not sustain the
rejection of independent claim 1, nor of dependent claims 2-6
and 9. Therefore, the Examiner’s decision rejecting claims 1-
6 and 9 under 35 U.S.C. § 103 is reversed.
REVERSED
JAMES D. THOMAS )
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