Appeal No. 2005-0957
Application No. 09/745,386
factual basis, with the facts being interpreted without hindsight reconstruction of the
invention from the prior art. In making this evaluation, the examiner has the initial duty
of supplying the factual basis for the rejection he advances. He may not, because he
doubts that the invention is patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in the factual basis. See In re Warner,
379 F.2d 1011, 154 USPQ 173 (CCPA, 1967). Since the examiner has failed to make
out a prima facie case of obviousness, we will not sustain the rejection of claim 1 under
35 U.S.C. § 103 as being unpatentable over Carpentier.
Concerning dependent claims 2-4, 24 and 25, we note that appellants have
indicated on page 3 of their brief that these claims are grouped to stand or fall with claim
1. Thus, given our disposition of claim 1 above, it follows that the rejection of claims 2-
4, 24 and 25 under 35 U.S.C. § 103 as being unpatentable over Carpentier is also
reversed.
Furthermore, the examiner’s statement that the appellants have not disclosed
that the crossing over of the sutures (flexible lengths of material) provides an advantage
or is used for a particular purpose is inaccurate. Appellants’ specification at page 10,
lines 12-15 expressly notes that the intersection of the sutures (flexible lengths of
material) defines a plane or slide closely adjacent to each commissure post tip that
helps prevent suture looping because a barrier is provided that guides loose sutures
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