Ex parte EHRLICH - Page 9




                Appeal No. 96-3263                                                                                                            
                Application No. 08/363,594                                                                                                    


                obvious to one of ordinary skill in the relevant art at the time                                                              
                of appellant's invention.  In that regard, we see no teaching                                                                 
                whatsoever that would have suggested using ANCRA Part No. 43451-                                                              
                11 with a track having circular apertures.  Nothing in Berns                                                                  
                discloses or suggests that a coupling clip member having the                                                                  
                claimed articulating locking structure be used with a track                                                                   
                having circular apertures.  As earlier mentioned, ANCRA only                                                                  
                instructs one to use Part No. 43451-11 with Series A and E tracks                                                             
                (not Series F track with circular apertures).  It appears to us                                                               
                that the examiner has engaged in a hindsight reconstruction of                                                                
                the claimed invention, using the appellant's structure as a                                                                   
                template.  This, of course, is impermissible.   Since all the              4                                                  
                limitations of claim 1 are not taught or suggested by the applied                                                             
                prior art, the examiner has failed to meet the initial burden of                                                              
                presenting a prima facie case of obviousness.   Thus, we cannot            5                                                  
                sustain the examiner's rejection of appealed claim 1, or claims 2                                                             
                through 4 and 6 which depend therefrom, under 35 U.S.C.  103 as                                                              
                being unpatentable over ANCRA Part No. 43451-11 and Series F                                                                  
                track in view of Berns.                                                                                                       


                         4 In re Fine, supra; In re Warner, supra.                                                                            
                         5Note In re Rijckaert, supra; In re Lintner, supra; and In                                                           
                re Fine, supra.                                                                                                               
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