Appeal No. 2006-1220
Application No. 10/457,960
We cannot, however, sustain the like rejection of claims 7, 8 and 17. While
we agree with the examiner, for the reasons stated on pages 4 and 5 of the answer,
that Ramer falls short of teaching that it is critical that the vertical guide members
22 be welded to the base 12, we find that the examiner is also correct that Ramer’s
disclosure of securing the brace members 30 to the base, by welding or otherwise,
would have been understood by one of ordinary skill in the art to apply equally to
the securement of the vertical guide members 22 to the base 12. We further find
that securement “by welding, or the like,” would not have conveyed or implied a
removable attachment. The examiner has not set forth any explanation as to why
one of ordinary skill in the art would have been motivated, by the teachings of
Ramer and Callahan, to change the connection of Ramer’s vertical guide members
22 to the base 12 from a permanent securement, by welding or the like, to a
removable attachment.
We also cannot sustain the examiner’s rejection of claims 20-23 as being
unpatentable over Ramer in view of Callahan. 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). In this instance, the examiner’s assertion that the mounting of the
drive structure (motor, transmission, etc.) underneath the load platform would have
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