Appeal No. 2000-1477 Page 5
Application No. 08/654,739
integral flattened portion that provides the user with the visual impression that it is a
step, and we fail to perceive any teaching, suggestion or incentive which would have led
one of ordinary skill in the art to modify it in the manner proposed by the examiner. The
appellant has argued in the Brief that there are specific reasons for the claimed
structure, and the examiner has provided no persuasive reasons why the artisan would
have found suggestion in the structure of a truck cab entry member to provide a step of
the type claimed on a grille guard, or evidence in support of the conclusions set forth on
page 4 of the Answer. In fact, a close scrutiny of the truck entry step pictured on page
7 reveals that it is not a generally cylindrical tubular member having a flattened portion
formed therein, and therefore even if it were incorporated into the selected grille design,
the result would not be the structure required by claim 1.
From our perspective, the only suggestion for modifying the grille guard in the
manner proposed by the examiner is found in the hindsight afforded one who first
viewed the appellant’s disclosure. This, of course, is not a proper basis for a rejection
under 35 U.S.C. § 103. In re Fritch, 972 F.2d 1260, 1264, 23 USPQ2d 1780, 1784
(Fed. Cir. 1992).
In sum, Go Rhino does not establish a prima facie case of obviousness with
regard to the subject matter recited in claim 1, and we thus will not sustain the rejection
of claim 1 or, it follows, of claims 2-8, which depend therefrom.
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