Appeal No. 97-0082
Application No. 07/993,718
interpreted without hindsight reconstruction of the invention
from the prior art,” (In re GPAC Inc, 57 F.3d 1573, 1582,
35 USPQ2d 1116, 1123 (Fed. Cir. 1995) quoting with approval from
In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967),
cert. denied, 389 U.S. 1057 (1968)). There is nothing in Kalt to
indicate that his transparent device will “remain substantially
transparent after a sterilization process” (claim 9) or “remain
imperceptibly less transparent after radiation sterilization
process of up to approximately 3.5 rads” (claim 10). Since the
examiner has not provided a factual basis for establishing the
obviousness of the subject matter defined by claims 9 and 10, we
are constrained to reverse the examiner’s rejection of these
claims under 35 U.S.C. § 103 based on the combined disclosures of
Ranford, Bales and Kalt.
We turn last to the rejection of claim 23 under 35 U.S.C.
§ 103 as being unpatentable over Ranford in view of Bales and
Kalt. While we agree with the examiner that it would have been
obvious to have made the interconnection of Ranford of a material
less flexible than the neck engaging portion in view of the
teachings of Bales, we must point out that this claim expressly9
9Bales has been relied on only for a teaching of making the
(continued...)
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