Appeal No. 1997-2194 Page 12
Application No. 08/195,018
basis with these facts being interpreted without hindsight
reconstruction of the invention from the prior art. The
examiner may not, because of doubt that the invention is
patentable, resort to speculation, unfounded assumption or
hindsight reconstruction to supply deficiencies in the factual
basis for the rejection. See In re Warner, 379 F.2d 1011,
1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S.
1057 (1968).
With this as background, we turn to the two rejections
under 35 U.S.C. § 103 before us in this appeal.
Claims 1 to 3, 6 and 7 recite an apparatus comprising,
inter alia, a vessel defining a compartment, a desiccant
article defining a desiccant chamber, and a separating element
separating the desiccant chamber from the compartment, wherein
the separating element is made of cardboard having a surface
tension for wetting which is smaller than 70 mN/m.
Sacherer discloses a container for test strips for the
analysis of body fluids, comprising a container body (2) with
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