Appeal No. 1999-0704 Page 10
Application No. 08/558,661
a curved surface of a bottom portion of said fishline guide connected to the8
inner surface of said rod tube is defined by a concavely-curved surface adjoining
said inner surface, and a convexly-curved surface extending from said
concavely-curved surface and covering the top and a side surface of said guide.
We do not agree with the examiner that Kelly's Figure 12 embodiment comprises the
recited concavely-curved surface adjoining the inner surface. In particular, the concavely-
curved surface (the outer peripheral surface of the eye 66) relied upon by the examiner
(answer, page 5) is separated from the inner surface of the tube 20 by the sleeve 68 and, thus,
does not adjoin the inner surface as recited. Therefore, we shall not sustain the examiner's
rejection of claim 13.
We shall also not sustain the examiner's rejection of claim 23, which requires that the
fishline guide be formed of a synthetic resin having a plurality of "circumferentially arranged
reinforcing fibers embedded therein." With regard to this limitation, the examiner contends that
"the materials used are a matter of design choice since the function is the same and no showing
of unexpected results was made" (answer, page 5).
Rejections based on 35 U.S.C. § 103 must rest on a factual basis. 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
8The reference to a "bottom portion" of the guide as including a surface which covers the top and side of
the guide appears somewhat confusing to us. However, as this issue is not before us in this appeal, we leave it to the
examiner and the appellants to determine whether different terminology might be more appropriate to describe the
surface contour. Additionally, while this type of surface contour is discussed on pages 23 and 24 of the appellants'
specification with regard to Figure 4, it appears to us that all of the disclosed guide embodiments comprise such a
surface contour.
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