Appeal No. 95-2936
Application 07/887,040
No. 13, filed August 18, 1994) and reply brief (Paper No. 15,
filed January 6, 1995) for appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellant's specification and claims, to
the applied prior art references, and to the respective positions
articulated by appellant and the examiner. As a consequence of
our review, we have made the determination that the examiner's
rejections of the appealed claims under 35 U.S.C. § 103 are not
well founded and will therefore not be sustained. However,
pursuant to 37 CFR § 1.196(b), we have made a new ground of
rejection against claim 23 on appeal. Our reasoning in support
of these determinations follows.
Like appellant, we consider that the examiner's attempt
to selectively modify the apparatus of Marzullo in view of the
patents to Lupkas, O'Dea and Muisener is based on a hindsight
reconstruction of the claimed invention from disparate bits and
pieces found in the applied secondary references. It is our view
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