Appeal No. 2001-2639 Page 6
Application No. 09/386,753
respectively to the “pneumatic means” and “cover” of claim 1.
It follows that Lake’s machine does not satisfy the
requirement in claim 1 that the support means be “between said
pneumatic means and said cover.”
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 proffered no evidence to support the
assertion that “it would have been obvious to one skilled in
the art at the time of the invention to have placed the
support any distance in the bore from the cover” (answer, page
3) and we find in Lake no suggestion for one skilled in the
art to have relocated the support (strap r, etc.) to a
location between the compressed air source and the breech
closure. In fact, to relocate the strap r, and hence the
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