Appeal No. 2001-1465 Page 5
Application No. 09/048,522
preferable to create a workpiece reject than to have to shut down the production line
(see column 1, lines 30-49; column 4, lines 54-58).
Lundgren disclose an optical imaging system for detecting deviations in the
direction of transverse elements of fabric strips caused by distortions resulting from
local tensioning applied by the cutting machine and for moving the cutter means and
strip “to enable the cutter means to cut the strip substantially along a single transverse
element and at least substantially avoid cutting of transverse elements, despite skewing
or bowing of such transverse elements from perpendicularity with the length direction of
the strip” (column 2, lines 29-34).
The test for obviousness is what the combined teachings of the references would
have suggested to one of ordinary skill in the art. See In re Young, 927 F.2d 588, 591,
18 USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981). Further, 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, 177-78 (CCPA 1967).
While both Noé and Lundgren are directed broadly to imaging systems used in
combination with cutters, we perceive no teaching or suggestion in these references to
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