Appeal No. 1996-3167 Page 15
Application No. 07/974,834
intermediate exit holes 24 in the water rod 18 prior to
reaching the descending path.
With regard to this difference, the examiner determined
(answer, p. 16) that it would have been obvious to omit
Patterson's plurality of intermediate exit holes 24 in his
water rod 18 because of the known alternative water rod 32
taught in Figure 10 of Kumpf. We do not agree.
The Federal Circuit states that "[the] mere fact that the
prior art may be modified in the manner suggested by the
Examiner does not make the modification obvious unless the
prior art suggested the desirability of the modification." In
re Fritch, 972 F.2d 1260, 1266 n.14, 23 USPQ2d 1780, 1783-84
n.14 (Fed. Cir. 1992), citing In re Gordon, 773 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). In our view, the only
suggestion for modifying Patterson in the manner proposed by
the examiner to meet the above-noted limitation stems from
hindsight knowledge derived from the appellants' own
disclosure. The use of such hindsight knowledge to support an
obviousness rejection under
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