Appeal No. 1997-3492
Application No. 08/428,994
could be so modified would not have made the modification
obvious unless the prior art suggested the desirability of the
modification."); see also In re Gorman, 933 F.2d 982, 986-87,
18 USPQ2d 1885, 1888 (Fed. Cir. 1991) (in a determination of
obviousness under 35 U.S.C. § 103, it is impermissible to
engage in a hindsight reconstruction of the claimed invention,
using the applicant’s structure as a template and selecting
elements from references to fill the gaps). Therefore, for
this reason, the rejection of claims 1, 2, 4-7 and 15-25 under
35 U.S.C. § 103 as being unpatentable over Delseth is
reversed.
Claims 1, 2, 4-7 and 15-25 are also rejected under 35
U.S.C. § 103 as being unpatentable over Powers with Delseth.
Powers discloses a brominated copolymer of a C to C isoolefin4 7
and a para-alkylstyrene. According to Powers, the copolymer
may be crosslinked with a variety of agents including metal
dithiolates and promoted metal oxides such as ZnO +
dithiocarbamates. See col. 32, lines 10-14. The examiner
recognizes that "[t]he claimed composition differs from [the]
composition of Power[s] in that applicant requires present
5
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