Appeal No. 2001-1808
Application 08/987,487
an elongated line having a diameter, even when oriented as
shown in Figure 4.
Thus, Kuoksa does not disclose each and every element of
the inventions respectively recited in claims 1 and 5.
Hence, we shall not sustain the standing 35 U.S.C. §
102(b) rejection of claims 1 and 5, and of claims 2 through 4
which depend from claim 1, as being anticipated by Kuoksa.
III. The 35 U.S.C. § 103(a) rejection
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 177-78 (CCPA 1967). 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. Id.
In short, the examiner has not advanced any factual basis
or evidence to support a conclusion that the above noted
differences between the subject matter recited in claims 1 and
5 and Kuoksa are such that the subject matter as a whole would
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