Appeal No. 2000-1279
Application No. 09/053,025
examiner. As a consequence of our review, we make the
determination which follows.
We do not sustain the respective rejections of
appellant’s claims under 35 U.S.C. § 103(a).
Obviousness under § 103 is a legal conclusion based on
factual evidence. See In re Fine, 837 F.2d 1071, 1073, 5
USPQ2d 1596, 1598 (Fed. Cir. 1988). An examiner may not resort
to speculation or unfounded assumptions to supply deficiencies
in establishing a factual basis. See In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967). In other words,
the subjective opinion of an examiner as to what is or is not
obvious, without evidence in support thereof, does not provide
a factual basis upon which the legal conclusion of obviousness
can be reached. Instead, it is well settled that in order to
establish a prima facie case of obviousness the prior art
teachings must be sufficient to suggest to one of ordinary
skill in the art making the modification needed to arrive at
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