Appeal No. 1999-2556
Application 08/774,848
to permit passage of a rodent are provided in the
perimeter wall 12 [column 2, lines 12 through 31].
As conceded by the examiner (see page 3 in the final
rejection), Manning does not meet the limitations in claim 25
requiring the claimed system to comprise a plurality of pest
control devices interconnected together to form a pest control
barrier surrounding a certain geographic area. Nonetheless,
the examiner concludes that “it would have been obvious to
employ a plurality of [Manning’s] devices or bait stations to
form a barrier around an area to keep certain pests away from
the area” (final rejection, page 3).
Rejections based on 35 U.S.C. § 103(a) 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.
Because the examiner has not supplied any factual support
for the conclusion that it would have been obvious to employ a
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