Appeal No. 2003-0806 Page 7
Application No. 09/219,275
69. Coating fluids are pumped into the port 67 via conduits 29, 31 while,
simultaneously, air under pressure from the air inlet port 69 enters the air chamber 68.
The air and/or liquid pressure forces open a normally closed aperture 82, allowing air
and coating fluids to enter the pan 11 as an atomized spray. According to Melliger, the
spray nozzle 66 may also be operated without air pressure from the air inlet port 69, in
which case the coating fluids enter the pan 11 as a stream and are poured on the
tablets (column 5, lines 60-63).
In rejecting appellants’ claims, the examiner has determined that it would have
been “an obvious matter of design choice to substitute the spraying apparatus of
Imanidis et al. with the spraying apparatus taught by Martin, since such a modification
would have involved a mere substitution of known equivalent structures” and, further,
that it would have been obvious to provide a housing around the spraying apparatus “in
order to prevent deposits on the spray device and increase ease of cleaning the
apparatus” (answer, page 4). First, we note that the examiner has not supplied any
evidence1 that the mixing jet sprayer apparatus of Martin is recognized as an
equivalent2 to the sprayer 35 of Imanidis. In fact, it appears from the disclosures of
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, 178
(CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
2 An examiner’s reliance on equivalents as a rationale supporting an obviousness rejection is
inappropriate without evidence that the equivalency was recognized in the prior art. See In re Ruff, 256
F.2d 590, 598, 118 USPQ 340, 347 (CCPA 1958).
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