Appeal No. 96-1669
Application 08/054,125
The Federal Circuit states that "[t]he mere fact
that the prior art may be modified in the manner suggested by
the Examiner does not make the modification obvious unless the
prior art suggested the desirability of the modification." In
re
Fritch, 972 F.2d 1260, 1266 n.14, 23 USPQ2d 1780, 1783-84 n.14
(Fed. Cir. 1992), citing In re Gordon, 733 F.2d 900, 902, 221
USPQ 1125, 1127 (Fed. Cir. 1984). "Obviousness may not be
established using hindsight or in view of the teachings or
suggestions of the inventor." Para-Ordnance Mfg., 73 F.3d at
1087, 37 USPQ2d at 1239, citing W. L. Gore, 721 F.2d at 1551,
1553, 220 USPQ at 311, 312-313.
Upon a review of Ohta relied upon by the Examiner,
we fail to find any suggestion or reason to provide a moisture
proof film wherein the moisture proof film consists of AlSiN
and wherein a product of the refractive index of the moisture
proof film and the thickness thereof is 42 nanometers or less.
To the contrary, we find that Ohta's teaching would have led
those skilled in the art to choose from one of the many other
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