Appeal No. 96-1058
Application 08/211,143
building and the escape “stocking” of Nordtvedt (col. 3, l. 35)
or the “long canvas bottomless sack” of Schuett (p. 1, right
col., l. 61).
The examiner contends that an extension of the teachings of
these references to have provided a plurality of “rigid
connecting means” would have been obvious, given the multiple
entry locations of Nordtvedt (answer, p. 4). We do not see why3
that would have been so. At most, the references to Nordtvedt
and Schuett teach suspending the escape device at the top and
connecting the bottom to those aiding in the escape, namely to
the ship below in Nordtvedt or to the rescuers holding the lines
H of Schuett. No other form of connection to the structure or
building being escaped is taught or suggested by these
references, so far as we have been apprised by the examiner, and
we think that in this regard the examiner is relying upon
impermissible hindsight to reconstruct the claimed invention from
3The examiner, in passing, refers to “cited patent
4,162,717 to Orii” (answer, p. 4). Where a reference is relied
upon to support a rejection, whether or not in a "minor
capacity," there would appear to be no excuse for not positively
including the reference in the statement of the rejection. See
In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA
1970). Because the examiner has not seen fit to include the
“Orii” reference in the rejection of these claims, we have not
considered that reference en route to reaching our decision in
this appeal.
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