Appeal No. 2006-1513 Παγε 8
Application No. 10/068,574
the use of corrections for allowing a photograph to be screen
printed onto the main body of the decoy. The examiner may not
resort to speculation or unfounded assumptions to supply
deficiencies in establishing a factual basis. See In re Warner,
379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967). Stated
differently, the subjective opinion of the examiner as to what is
or is not obvious, without evidence in support thereof, does not
provide a factual basis upon which the legal conclusion of
obviousness can be reached. We therefore find that the examiner
has failed to establish a prima facie case of obviousness of
claim 29. The rejection of claim 29 under 35 U.S.C. § 103(a) is
reversed.
We turn next to the rejection of claims 27 and 30-33 under
35 U.S.C. § 103(a) as being unpatentable over Tryon in view of
Palmer. We begin with claim 27. We reverse the rejection of
claim 27, which depends from claim 21, because although Palmer
would have suggested to an artisan having a decoy head that is
attachable to the decoy body, Palmer does not disclose attaching
a photograph to the decoy in a non-adhesive manner. Accordingly,
Palmer fails to make up for the deficiencies of Tryon. The
rejection of claim 27 under 35 U.S.C. § 103(a) is reversed.
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