Appeal No. 2000-1841
Application 09/016,738
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.
As correctly pointed out by the appellants (see page 18
in the main brief), neither Shook nor Brown teaches or
suggests a box-boom lift arm having a first extension and a
second extension spaced apart to define a first lever space
therebetween and a rear tilt lever that extends through the
first lever space. The examiner’s attempt to rationalize
these deficiencies away constitutes a classic case of
hindsight reconstruction predicated on speculation and
unfounded assumptions as to what the combined teachings of the
references would have suggested to one of ordinary skill in
the art.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of claims 1 and 9, or of dependent claims
4, 8, 10 and 13 through 17, as being unpatentable over Shook
in view of Brown.
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