Appeal No. 97-3707
Application 08/595,910
may be applied to the article through the gripping
edges [column 1, lines 52 through 67].
In rejecting independent claim 9 under 35 U.S.C. § 103,
the examiner contends that "[i]t would have been obvious to
one of ordinary skill in the art at the time the invention was
made to have modified the opener of [Fox] by including a
second finger loop as taught by Delsack in order to provide a
more secure hold on the device" (answer, page 3).
The appellants’ argument that this proposed combination
of Fox and Delsack is predicated on impermissible hindsight
(see pages 9 through 11 in the brief) is persuasive.
Considering the fundamental differences between the devices
disclosed by Fox and Delsack, it is apparent that the examiner
has improperly employed claim 9 as an instruction manual to
selectively piece together isolated disclosures in the prior
art in order to support a conclusion of obviousness (see In re
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir.
1992)).
Moreover, even if Fox and Delsack were combined in the
manner proposed, the resulting device still would fall short
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