Appeal No. 2002-0938 Page 4
Application No. 08/958,182
speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies
in the factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968). In this case, the examiner has not adduced
any evidence that gels were recognized by those of ordinary skill in the art at the time of
appellant’s invention as suitable for use in peri-anal hygiene. While the examiner
“contends that it has been well established to dispense sanitizers in the form of gels to
sanitize portions of a user’s body” and “that such gels generally comprise aloe vera to
help combat the dryness associated with alcohol based gels” (answer, page 4), the
examiner has not supported this contention with evidence. Moreover, even accepting
this contention as true, the known use of gel sanitizers for other portions of the body
does not necessarily provide any suggestion to use such gel sanitizers in the peri-anal
area.
For the foregoing reasons, it appears to us that the examiner’s rejection of claims
3, 4 and 7 as being unpatentable over Gold stems from impermissible hindsight rather
than from any suggestion in the applied prior art to modify Gold to arrive at the claimed
invention. We thus conclude that the teachings of Gold are insufficient to establish a
prima facie case of obviousness of the subject matter of independent claims 3, 4 and 7,
or of claims 5 and 6 which depend from claim 4.2
2 Having determined that a prima facie case of obviousness has not been established, it is
unnecessary for us to consider the declaration under 37 CFR § 1.132 (Paper No. 21) filed by appellant.
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