Appeal No. 95-0976
Application No. 07/936,558
be founded in the prior art, not in the applicant’s
disclosure.”
In re Dow Chemical Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531
(Fed. Cir. 1988). As the Federal Circuit stated in Sensonics,
Inc. v. Aerosonic Corp., 81 F.3d 1566, 1570, 38 USPQ2d 1551,
1554 (Fed. Cir. 1996):
To draw on hindsight knowledge of the
patented invention, when the prior art
does not contain or suggest that knowledge,
is to use the invention as a template for
its own reconstruction - an illogical and
inappropriate process by which to determine
patentability. . . . The invention must be
viewed not after the blueprint has been
drawn by the inventor, but as it would have
been perceived in the state of the art that
existed at the time the invention was made.
[citations omitted]
For the reasons stated above we fail to find a prima
facie case of obviousness with respect to claims 1-14 based on
the art before us.
Obviousness-type Double Patenting
Claims 1-14 stand provisionally rejected under the
judicially created doctrine of obviousness-type double
patenting
19
Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: November 3, 2007