Ex parte KUSLICH et al. - Page 8




          Appeal No. 1998-2808                                                        
          Application No. 08/733,464                                                  


               A conclusion that the claimed subject matter is prima                  
          facie obvious must be supported by evidence, as shown by some               
          objective teaching in the prior art or by knowledge generally               
          available to one of ordinary skill in the art that would have               
          led that individual to combine the relevant teachings of the                
          references to arrive at the claimed invention.  See In re                   
          Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir.                   
          1988).  Rejections based on  103 must rest on a factual 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).  Our reviewing court has repeatedly cautioned                  
          against employing hindsight by using the appellants’                        
          disclosure as a blueprint to reconstruct the claimed invention              
          from the isolated teachings of the prior art.  See, e.g.,                   
          Grain Processing Corp. v. American Maize-Products Co., 840                  


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