Appeal No. 97-3708
Application 08/418,321
found it obvious to use a flat form of the type disclosed by
Stockum in the method for forming the sturdy three dimensional
boot of Marx, absent the hindsight accorded one who first
viewed appellants’ disclosure. Such hindsight reconstruction,
of course, is not a proper basis for establishing the
obviousness of the subject matter of claims. See In re
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir.
1992). We therefore will not sustain the standing § 103
rejection of the appealed claims as being unpatentable over
Marx, Stockum and Bodle.
Under the provisions of 37 CFR § 1.196(b), we enter the
following new rejection.
Claim 18 is rejected under 35 U.S.C. § 112, second
paragraph, for failing to particularly point out and
distinctly claim the subject matter sought to be patented.
This claim is
directed to a method of forming a shoe cover, and recites a
number of steps (providing a form, dipping the form into
-8-
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