Appeal No. 95-3883
Application No. 08/147,987
In our view, the fact that Montgomery teaches the use of
a thixotropic agent in the polymer resin bonding agent would
not have suggested the use of a thixotropic agent in the water
disclosed in the Maechtle reference. There is no teaching of
how the thixotropic agent would work with water and mineral
mortar, nor is there a reasonable expectation of success as
required to support a prima facie case of obviousness. In
fact, the combined teachings of the references do not provide
a factual basis establishing that the pyrogenic silica will
render the water capsule of the Maechtle reference
thixotropic, or, for that matter, that proportions of 0.5% to
10% as required in appellants' claim 1 on appeal would have
been obvious to one of ordinary skill. It is our view that
the combination of references is based on an impermissible
hindsight reconstruction of appellants' claimed invention,
inasmuch as there is no suggestion in the references' combined
teachings.
In summary, we find that the rejection under 35 U.S.C. §
103 of claims 1, 3, 5 and 6 lacks an underlying factual basis,
and the rejection of these claims is reversed.
REVERSED
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