Appeal No. 97-2625
Application No. 08/118,925
to a container as taught by Bartels. Moreover, to design
such draining container with a height less than width of
a bottom wall as shown by Malloy and Van Romer et al
would also have been obvious because it may receive more
capacity. [Answer, pages 3 and 4].
The appellant's argument that the proposed combination of
Bartels, Van Romer and Malloy is predicated on impermissible
hindsight (see pages 10 through 12 in the brief) is
persuasive. We find no support in either Van Romer or Malloy
for the examiner's assertion that the capacity of a container
of the type disclosed by Bartels may be increased by reducing
the height of Bartels' side wall. Conversely, we find no
motivation in Bartels for modifying Van Romer or Malloy to
provide side walls extending upwardly and inwardly from the
periphery of their respective bottom wall. Considering the
fundamental differences between the device disclosed by
Bartels and the device disclosed by Van Romer and Malloy, it
is apparent that the examiner has improperly employed
appellant's disclosure as an instruction manual to selectively
piece together isolated disclosures in the prior art in order
to support a conclusion of obviousness. "Obviousness cannot
be established by combining the teachings of the prior art to
produce the claimed invention, absent some teaching or
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