Ex parte KREMSMAIR et al. - Page 8




          Appeal No. 1999-0721                                                        
          Application No. 08/683,826                                                  


          the examiner has the initial duty of supplying the factual                  
          basis for the rejection he advances. He may not, because he                 
          doubts that the invention is patentable, resort to                          
          speculation, unfounded assumptions or hindsight reconstruction              
          to supply deficiencies in the factual basis.  See In re                     
          Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).                 
          cert. denied, 389 U.S. 1057 (1968).                                         

          As should be apparent from the foregoing, we have refused                   
          to sustain either of the rejections before us on appeal. Thus               
          the decision of the examiner rejecting claims 5 through 8 of                
          the present application under 35 U.S.C.  103(a) is reversed.               

                                      REVERSED                                        



                    NEAL E. ABRAMS      )                                             
                    Administrative Patent Judge  )                                    
                                                  )                                   
                                                  )                                   
                                                  )   BOARD OF PATENT                 
                    CHARLES E. FRANKFORT         )     APPEALS AND                    
                    Administrative Patent Judge  )    INTERFERENCES                   
                                                  )                                   
                                                  )                                   
                                                  )                                   
                    JOHN P. McQUADE              )                                    
                    Administrative Patent Judge  )                                    
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