Appeal No. 1997-2032
Application 08/229,278
method for creating a sturdy grid-like structure; and 3)
provide the assembly of Baxter as modified by Hug and Scotti
with bezel strips/plates and screws for holding the assembly
together as in Otema, because such is a well known practice in
the shelving and cabinetry art; we see nothing in the
teachings of the relied upon prior art references which would
have suggested the desirability, and thus the obviousness, of
the examiner’s various modifications of the modular data
storage and retrieval system in Baxter. In this regard, we
agree with appellant that it is only by impermissible
hindsight and reliance on appellant's own disclosure that the
examiner (acting as one of ordinary skill in the art) would
have possibly been led to extensively reconstruct the modular
system in Baxter so as to derive the claimed frame assembly
from the applied teachings.
A rejection based on § 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
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