Appeal No. 2000-1630
Application No. 09/085,540
one solid piece, as in Fig. 2, with a top to close the same”
(column 2, lines 7-9).
Concerning the requirement of claim 12, from which claim 6
depends, that the claimed shelter comprises a base section
having a tapered side wall and a top section that is tapered to
enable the base and top sections to be nested for shipment, the
examiner has taken the position that “Kennon (column 2, lines 7-
8) discloses the cistern[] being made in sections or in one
solid piece. And as the sections are tapered, they are
certainly capable of being nested for shipment” (answer, page
7).
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), cert. denied, 389 U.S. 1057 (1968). 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.
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