Appeal No. 98-0600
Application 08/541,441
invention from the prior art. In making this
evaluation, all facts must be considered. The
Patent Office [examiner] has the initial duty of
supplying the factual basis for its rejection. It
may not, because it may doubt that the invention is
patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply
deficiencies in its factual basis. (Emphasis in
original).
In this case, the examiner has made several findings
which lack an adequate factual basis in the record. First,
the
examiner concludes that Figure 1 of Kira shows a recess
between the magnetoresistive sensor 3 and the air bearing
surface located along the side where arrow A is disposed. But
because of the angular view of the illustration, the
appellant’s view is just as plausible that the forward end of
sensor element 3 is actually aligned or flush with the air
bearing surface. The examiner does not point to any
description in the specification which refers to or discusses
a recess as is claimed by the appellant, or otherwise
identifies a recess as being illustrated in Figure 1.
Secondly, the examiner finds that in Kira the gap defined
by the "alleged" recess is filled with a dielectric material,
even though the examiner points to no description or
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