Appeal No. 2002-1993 Page 6
Application No. 09/336,648
independently chosen posters. But here also, each window
would indeed have comprised its own motor as in Sawyer or
Stadjuhar. Thus, in no way could a combination of these
two references lead to a unique window with a plurality of
independent motors for this same window.
Stated differently, Stadjuhar would not have suggested modification of the Sawyer
device to provide a separate motor for each of the rollers as proposed by the examiner
to arrive at appellants’ claimed invention, namely a device having a display window and
a set of receiver drums on which posters are at least partially wound, wherein the
posters in the operative position registered with the window lie in planes which are
parallel, spaced apart and which substantially register with one another and a set of
motors, each motor being associated with one of the receiver drums. We find in
Stadjuhar no teaching or suggestion of providing a plurality of motors so as to enable
operation of at least some of the posters if a motor should fail. The examiner’s stated
motivation for the modification of Sawyer thus appears to stem from impermissible
hindsight.1
We have reviewed the teachings of the additional references relied upon by the
examiner in rejecting the claims but find nothing therein which overcomes the above-
1 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, 177-78
(CCPA 1967).
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