Appeal No. 2003-0458
Application No. 09/894,738
problems relating to the easy engagement of a workpiece or to the
ready acceptance of different sized workpieces.
With further regard to this issue, the examiner seems to
believe (see the paragraph bridging pages 5 and 6 of the answer)
that an artisan with ordinary skill would have associated the
above discussed desiderata with an open slot of the type under
consideration based upon the figures such as Figure 1 of Womack’s
drawing. The infirmity of this belief is that it is sheer
speculation on the examiner’s part with utterly no evidence to
support it in the record of this appeal. We here remind the
examiner that a section 103 rejection must rest on a factual
basis without resort to speculation, assumption or hindsight
reconstruction. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
Under the circumstances recounted above, it is our
determination that the Grubbs and Womack references are
evidentiarily inadequate to establish a prima facie case of
obviousness with respect to the modification proposed by the
examiner and discussed above. We cannot sustain, therefore, the
examiner’s section 103 rejection of claims 1, 3, 6 and 8 as being
unpatentable over Grubbs in view of Womack. Furthermore, because
the deficiencies of these references are not supplied by Onofrio,
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