Appeal No. 2000-0759
Application No. 08/772,198
tab end" (claim 8), or a second portion extending "from the
apex back toward the coupler and terminating at a first tab
end" (claim 11). For this reason alone, we would refuse to
sustain the examiner's rejection of claims 8 through 20 on
appeal under 35 U.S.C. § 103.
As a further point, we also find that we are in agreement
with appellant's position (brief, pages 8-9) that there is
nothing in Bailey to suggest any of the changes urged by the
examiner, or any other possible changes, needed to arrive at
appellant's claimed subject matter.
Thus, it is our opinion that the examiner has failed to
provide an adequate evidential basis to support the § 103
rejection before us on appeal, and that the examiner has
relied upon impermissible hindsight knowledge derived from
appellant's own teachings to reconstruct the claimed subject
matter out of the applied prior art. Accordingly, we will not
sustain the examiner's rejection of claims 8 through 20 under
35 U.S.C. § 103 as being unpatentable over Bailey.
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