Appeal No. 96-2247 Page 10
Application No. 08/218,488
In summary, we see no motivation in the applied prior art,
of why one skilled in the art would have modified the device of
Wilde to have a shroud comprising two essentially perpendicular
intersecting sets of fiberglass elements, wherein the open area
between the fiberglass elements exceeds about 40% of the total
shroud area. Thus, it appears to us that the examiner has
engaged in a hindsight reconstruction of the claimed invention.
This, of course, is impermissible. Since the examiner's3
rejection was based upon an erroneous obviousness determination,
the examiner has failed to meet the initial burden of presenting
a prima facie case of obviousness. Thus, we cannot sustain the4
examiner's rejection of appealed independent claim 1, or claims 2
and 3 which depend therefrom, under 35 U.S.C. § 103.
CONCLUSION
To summarize, the decision of the examiner to reject claims
1 through 3 under 35 U.S.C. § 103 is reversed.
REVERSED
3 In re Fine, supra; In re Warner, supra.
4Note In re Rijckaert, supra; In re Lintner, supra; and In
re Fine, supra.
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