Appeal No. 2004-1796 Page 8
Application No. 09/682,167
teaching, suggestion or incentive in Barrowman which would have led one of ordinary
skill in the art to so modify the LG rocket. From our perspective, the only suggestion for
doing so is found in the hindsight afforded one who first viewed the appellants’
disclosure which, of course, is not a proper basis for a rejection under Section 103.
In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
Finally, the examiner is in error regarding the presence in the Johnson reference
of a side thrusting means. The truth of the matter is that ports 26, 46 and 66 are for the
purpose of releasing fumes from the detonated caps carried in the nose of the Johnson
rocket (column 2, lines 66 and 67; column 3, lines 45 and 46; column 4, lines 9 and 10),
and there is no teaching in the reference that the gases issuing therefrom constitute a
“side thrusting means,” as required by claim 1.
For the reasons set forth above, the references applied in this rejection fail to
establish a prima facie case of obviousness with regard to the subject matter of claim 1,
and this rejection cannot be sustained. It follows that the same rejection of dependent
claims 2-4 also cannot be sustained.
Independent claim 5 contains the same limitations regarding fixed aerodynamic
surfaces, 60% spacing of the center of gravity, and side thrusting means as were
present in claim 1. Therefore, the like rejection of claim 5, and of dependent claims 6-
13, fails for the reasons associated with these limitations expressed above with regard
to claim 1.
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