Appeal No. 1997-2032
Application 08/229,278
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.
See In re Warner, 379 F.2d 1011, 154 USPQ 173 (CCPA 1967),
cert denied, 389 U.S. 1057 (1968). As our Court of review
indicated in In re Fritch, 972 F.2d 1260, 23 USPQ2d 1780 (Fed.
Cir. 1992), it is impermissible, as the examiner has done
here, to use the claimed invention as an instruction manual or
"template" to piece together isolated disclosures and
teachings of the prior art so that the claimed invention may
be rendered obvious. Since we perceive no factual basis in
the prior art relied upon which supports the examiner’s
proposed combinations thereof, and have determined that the
examiner's conclusion of obviousness is based on a hindsight
reconstruction of the claimed invention from isolated,
disparate teachings in the prior art and reliance upon
appellant's own disclosure, we will not sustain the examiner's
rejection of claims 7, 9 through 11, 13 and 14 on appeal under
35 U.S.C.
§ 103.
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