Appeal No. 1999-0892
Application No. 08/630,128
reach this conclusion in view of the express disclosure of the
Figure 4 embodiment in Onodera. As asserted by Appellants,
while Onodera demonstrates the advantage of using a [01(-1)] as
opposed to a [011] orientation, Onodera also notes the large
deviations produced by either of these orientations. The
remainder of the disclosure of Onodera is directed to the
increased results produced by a further orientation, i.e. [001].
In conclusion, we are left to speculate why one of ordinary
skill would have found it obvious to select the particular [01(-
1)] gate orientation in Onodera to make the resultant
combination suggested by the Examiner. The only reason we can
discern is improper hindsight reconstruction of Appellants’
claimed invention. In order for us to sustain the Examiner’s
rejection under 35 U.S.C. § 103, we would need to resort to
speculation or unfounded assumptions or rationales to supply
deficiencies in the factual basis of the rejection before us.
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968), rehearing denied, 390
U.S. 1000 (1968). Since we are of the view that the prior art
applied by the Examiner does not support the rejection, we do
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