Appeal No. 1999-1756
Application No. 08/499,100
that one of ordinary skill in the art would have looked for an
improvement on how to prevent leakages in an aircraft system
and contends that one improvement would be to use a brush seal
because it is economical and it prevents leakages in many
directions of movement (answer, p. 5).
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. 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.
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968).
In this instance, the examiner has not provided any
evidence to establish that brush seals are more economical
than piston rings or spring seals. Likewise, the examiner5
has adduced no evidence to show that brush seals were
recognized in the art at the time of appellants' invention as
We are not persuaded that the known use of bristles in many products,5
from toothbrushes to street cleaners to brooms, inherently means that either
bristles or brush seals are economical to make or use, as urged by the
examiner on page 1 of the first supplemental answer.
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