Appeal No. 97-2888
Application 08/389,077
known problem in the art. Thus, we do not agree that the
examiner has a valid basis for asserting that it would have
been
an obvious matter of mechanical "design choice" to construct
the first and second brackets 10 and 12 shown by Michelson
'943 as a five-sided closed loop.5
With respect to claims 13-15, 40 and 43, each of these
claims calls for the pivoting legs to each include an
extension
plate 220. The examiner acknowledges (Answer, page 6) that
Heffington’s elongated support rods 15 are of a unitary
construction, but argues that they "could" be made of three
parts.
The appellant argues (Brief, page 13) that there is no
teaching or suggestion in the prior art of making Heffington’s
support rods out of three pieces and that the examiner’s
rejection is based on impermissible hindsight. We agree. In
that regard, the examiner has not cited any evidence that
5Cf. In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 9 (CCPA 1975) wherein
the court indicated that the rationale of "obvious matter of design choice"
applies when a modification is made which "solves no stated problem".
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