Appeal No. 2002-1054 Page 5
Application No. 09/436,333
1974). Thus, we sustain the examiner's rejection of appealed claim 10 under 35 U.S.C.
§ 103.
We will also sustain the rejection as it is directed to claim 11 because each one
of Eastman and Cooley discloses a quadrilateral with pairs of opposing walls.
In regard to claims 12 and 13, we note that Eastman discloses that the support
member is a planar plate and that the quadrilateral includes separate wall supports for
the planar plate. Therefore, we will sustain the rejection as it is directed to claims 12
and 13.
Claim 14 recites that the quadrilateral includes wall-mounted rollers to facilitate
the slidable movement of the support member. The examiner states:
It would have been obvious to one of ordinary skill in the art
to have employed standard roller draw hardware in the
constuction of the device of Cooley as modified above by
Eastman, et. al., motivated by the ease of operation
achieved thereby. [answer at page 3]
In our view, there is no motivation of including rollers in either the Eastman or
Cooley container. The examiner’s conclusion that the inclusion or rollers would achieve
ease of operation is speculative in nature and is not based on a factual basis. A
rejection based on § 103 must rest on a factual basis with these facts being interpreted
without hindsight reconstruction of the invention from the prior art. The examiner may
not, because of doubt that the invention is patentable, resort to speculation, unfounded
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