Appeal No. 1998-2811
Application 08/670,137
elongated edges are joined by a heat-sealing process.
Furthermore, the test results set forth on pages 9 through 13
of the appellants’ specification indicate that the
Gerstenberger pad also does not meet the limitation in claim 1
requiring the pad to be capable of absorbing water in an
amount “greater than eight grams water per gram dry weight.”
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). 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.
In the present case, the examiner has failed to advance
any factual basis to supply the aforementioned deficiencies in
Gerstenberger. Since Gerstenberger alone does not justify a
conclusion that the differences between the subject matter
appellants’ specification, and U.S. Patent Nos. 4,944,734
(column 1, lines 35 through 39) and 5,190,533 (column 1, lines
23 through 27), both of which are of record.
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