Appeal No. 2000-0902
Application No. 08/804,466
respective first and second ends,1 it is inappropriate, in our
opinion, for the examiner to view their collective teachings
as suggesting such an arrangement.
The mere fact that the prior art could be modified does
not make such a modification obvious absent suggestion of the
desirability of doing so. See, for example, In re Gordon, 733
F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). From our
perspective, the only suggestion for putting the selected
pieces from the references together in the manner proposed by
the examiner is found in the luxury of hindsight accorded one
who first viewed the appellant’s disclosure. This, of course,
is not a proper basis for a rejection. See In re Fritch, 972
F.2d 1260, 1266 n.15, 23 USPQ2d 1780, 1783-84 n.15 (Fed. Cir.
1992).
In light of the foregoing, we shall not sustain the
standing § 103 rejection of claims 1-5 and 17 as being
unpatentable over Zachry in view of Currie.
Rejections (b) and (c)
1The strap sections 16, 18 of Currie, being integrally
molded with the body of the mask, are not seen as teaching or
suggesting this claim limitation.
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