Appeal No. 1996-2530
Application 08/246,324
a particle of the size the claimed method is producing
and recovering (i.e., starting powders for high
technology ceramics).
Examiner's third argument rests not on prior art to
show that it would have been obvious to modify Wood's
process to make a powder, but rather on hindsight: "if
one were to hypothetically step on or otherwise apply
pressure to one of the structures of Wood, clearly a
powdery substance of some sort would result." Since
A[o]bviousness can not be established by hindsight
combination to produce the claimed invention,@ In re
Dance, 160 F.3d 1339, 1343, 48 USPQ2d 1635, 1637 (Fed.
Cir. 1998), we are not persuaded by this argument either.
In conclusion, we find that Wood does not disclose
the last two steps of the claimed process and that there
is no suggestion to modify Wood's process to make and
recover a powder. As a result, a prima facie case of
obviousness has not been established to show that the
claimed process would have been obvious over Wood to one
with ordinary skill in this art.
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