Appeal No. 2003-0693
Application No. 09/006,248
(3) The § 103 rejection of claims 19-24 and 26
We do not sustain the § 103 rejection of claim 19, or claims
20-24 and 26 that depend therefrom, as being unpatentable over
Dailey in view of Hayes, Vachtsevanos, Herbermann ‘309, Larsson and
Blatt ‘276.
Appellants argue, first, that Dailey and Hayes constitute
nonanalogous art. However, in the view we take in this case, even
if we assume that Dailey and Hayes are analogous art, the
obviousness rejection of claims 19-24 and 26 is not well founded.
Appellants further argue (main brief, pages 12-13) that the
examiner’s reference combination is based on the use of
impermissible hindsight. We agree. Like appellants, we find no
basis in the combined teachings of the applied references for,
among other things, substituting the sophisticated powered gripper
of Vachtsevanos for the fish hook clamping means 102, 103, 106 of
Dailey, and for then further modifying Dailey by routing a flexible
line through the ball joint 62 of Dailey to power the gripper in
view of Herbermann ‘309 and/or Larsson. In that regard, we share
appellants’ view that the examiner is using hindsight benefit of
appellants’ own disclosure to pick and choose elements or concepts
from the applied references, and then selectively combine the
chosen disparate elements or concepts in an attempt to reconstruct
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