Appeal No. 95-3715 Page 6
Application No. 08/042,899
skilled artisan would have been concerned with pollution when
using prior art organic solvent borne base coat/clearcoat
systems that utilize an additive that imparts gel-like
character to a freshly formed base coat film from the teachings
of Backhouse regarding such (column 1, lines 29-52). In our
view, the rejection as proposed by the examiner would appear to
destroy the inventive concept of Backhouse which requires that
the first layer be a water based composition as disclosed by
Backhouse (column 2, line 3 through column 4, line 63). See Ex
parte Hartmann 186 USPQ 366, 367 (Bd. App. 1974). Thus, we
find ourselves in agreement with appellants that the applied
prior art does not suggest the claimed invention.
In our view, the examiner appears to have relied on
impermissible hindsight in making his determination of
obviousness. Accordingly, we cannot sustain this rejection
based on the present record.
OTHER ISSUES
The examiner should consider whether the language
"refinish primer composition according to" as used in dependent
claims 51-62 is consistent with the "refinish primer system" as
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