Appeal No. 1998-3134 Page 8
Application No. 08/437,225
hierarchy and at least one second code module at a lower level
of the hierarchy that depends from the first code module.
The examiner fails to show a teaching or suggestion of
the limitations in Southerton. “A rejection ... clearly must
rest on a factual basis ....” In re Warner, 379 F.2d 1011,
1017, 154 USPQ 173, 178 (CCPA 1967). “The Patent Office has
the initial duty of supplying the factual basis for its
rejection. It may not ... resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in its factual basis.” Id., 154 USPQ at 178.
Here, although Southerton may inherently teach a
hierarchy, it is not a hierarchy of code modules. To the
contrary, the reference merely discloses a hierarchy of
windows. The appellants assert, “such a relationship has no
bearing upon the architecture of the software code that is
used to draw those objects. In a typical programming
environment, each of the various windows is drawn by the same
code. In essence, each window constitutes a separate
instantiation of that code.” (Reply Br. at 2-3.) Rather than
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