Appeal No. 95-2074
Application 08/170,985
of a phosphine dihalide to a tertiary phosphine that we find is
in the appellant’s specification. Accordingly, in our opinion,
the examiner has relied on impermissible “hindsight” to arrive at
the conclusion that the claimed invention is obvious over the
applied prior art. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d
1780, 1784 (Fed. Cir. 1992); Interconnect Planning Corp. v. Feil,
774 F.2d 1132, 1138, 227 USPQ 543, 547 (Fed. Cir. 1985) (“It is
impermissible to engage in hindsight reconstruction of the
claimed invention, using the applicant’s structure as the
template and selecting elements from the references to fill the
gaps”). Accordingly, the rejection is reversed.
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