Appeal No. 2004-2346 Page 6
Application No. 09/876,519
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).
As pointed out by appellants on page 1 of the reply brief, the examiner has
provided no factual support for the position that the Staser configuration would result in
noise. In fact, appellants’ argument on pages 6-7 of the brief, that Staser’s channel 72,
which is disposed outside of the air dam 54, acts as a take-up tube and that, as such,
there would be no need to locate a take-up tube in the deflector (air dam) and support it
by the deflector (brief, pages 6-7), appears to be well taken. Appellants, on the other
hand, use take-up tubes because appellants’ cables have loose ends within the
deflector that must be guided. For the foregoing reasons, we conclude that the
examiner’s proposed modification of Staser stems from improper hindsight, inasmuch
as the stated motivation therefor lacks factual support in the record.
In light of the above, we shall not sustain the rejection of claim 1, or the like
rejection of claims 2 and 4 depending therefrom, as being unpatentable over Staser in
view of Racine.
We now turn our attention to the rejection of claim 6 as being unpatentable over
Staser in view of Minnick. The examiner acknowledges that Staser lacks the housing
including an access panel for permitting access to the drive motor , as called for in claim
6. Minnick discloses a vehicle cab ventilator unit to be affixed to the roof of a cab
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