Appeal No. 1997-4002
Application 08/459,880
correspond to the claimed subject matter in all respects.
We have carefully reviewed the appealed claims,
appellants’ specification, the applied references, and the
respective viewpoints of appellants and the examiner. As a
consequence of our review, we conclude that the standing § 103
rejection is not sustainable.
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 177-78 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
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. Id.
We fully appreciate that in Ferguson, the patch 8 is
sized such that it covers and protects a substantial portion
of one or both sides of a flattened, lay-flat bag (column 3,
lines 6-10). While Ferguson’s patch 8 approaches the edges of
the bag in its flattened lay-flat position, it is clear that
it does not in any sense cover an edge of the lay-flat bag.
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