Appeal No. 2003-2149 Page 9
Application No. 09/498,379
based on 35 U.S.C. § 103 must rest on a factual basis with these facts being interpreted
without hindsight reconstruction of the invention from the prior art. The examiner may
not, because of doubt that the invention is patentable, resort to speculation, unfounded
assumption or hindsight reconstruction to supply deficiencies in the factual basis for the
rejection. See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967),
cert. denied, 389 U.S. 1057 (1968).
For the reasons set forth above, the examiner has not established a prima facie
case of obviousness and accordingly the decision of the examiner to reject claims 57 to
62 under 35 U.S.C. § 103 is reversed.
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