Appeal No. 1999-2075
Application No. 08/482,944
would be placed, let alone how any such modification would address
the specifics of the claim language of claims 2-4 which requires a
specific relationship among the imaging axis and imaging plane of
the electronic camera and a defined reference point. In order for
us to sustain the Examiner’s rejection under 35 U.S.C. § 103, we
would need to resort to speculation or unfounded assumptions or
rationales to supply deficiencies in the factual basis of the
rejection before us. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968), rehearing
denied, 390 U.S. 1000 (1968). Accordingly, since the Examiner has
not established a prima facie case of obviousness, the 35 U.S.C.
§ 103 rejection of claims 2-4 based on the combination of Fellous
and Saunders cannot be sustained.
In summary, we have sustained the Examiner’s 35 U.S.C.
§ 102(e) rejection of claim 1 based on Fellous. As to the
rejections under 35 U.S.C. § 103, we have not sustained the
rejection of claim 1 based on Pryor, nor the rejection of claims
2-4 based on the combination of Fellous and Saunders. Therefore,
the Examiner’s decision rejecting claims 1-4 is affirmed-in-part.
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