Appeal No. 2002-1380
Application No. 08/786,270 Page 15
determination of a displayed program, but does not disclose any
means or structure for identifying the local source of the
program. We would have to resort to speculation to find
otherwise. The examiner may not resort to speculation or
unfounded assumptions to supply deficiencies in establishing a
factual basis. See In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 178 (CCPA 1967).
With respect to the examiner's reference to patent(s)
discussed in Thomas, if the examiner wants to rely upon these
patent(s) for a teaching of determining the local source of a
displayed program, the examiner should apply these patent(s)
against the claim(s) and specifically point out the portions of
the patent(s) being relied upon.
From all of the above, we find that Thomas does not
anticipate claims 1-13, 15-27, 49-53, 59-61, and 66-73.
Accordingly, the rejection of claims 1-13, 15-27, 49-53, 59-61,
and 66-73 is reversed.
We turn next to the rejection of claims 14, 28, 75, and 76
under 35 U.S.C. § 103(a) as unpatentable over Thomas. We reverse
he rejection of these claims as we find no suggestion of the
desirability of providing Thomas with the ability to determine
the local source of the displayed program.
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