Appeal No. 97-2908
Application 08/347,201
Based on the teachings of Freeman or Nicko, it is the
examiner’s position that
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to provide Zackheim’s sealing member 24 with a thin,
unpunctured layer of sealing [material] (i.e.,
rubber) above slit 38 by stopping slit 38 short of
the upper surface of the sealing member . . .
because it would have obviated the need for separate
barrier layer 26. [Answer, page 4.]
In responding to appellant’s argument in the brief, the
examiner further explains on page 6 of the answer that
it would have been obvious to an artisan at the time
the invention was made to eliminate Zackheim’s
aluminum foil layer 26 in favor of an uncut layer of
material at the top of sealing element 24, as
suggested by either Nicko or Freeman. Whether the
uncut layer overlies “an open cavity” as in Nicko
and Freeman, or a slit, as in Zackheim, is
immaterial to the question of obviousness.
Assuming for the sake of argument that Nicko is analogous
prior art with respect to appellant’s invention, we will not 2
sustain this rejection. We view the examiner’s consideration
of the teachings of the applied references to be based on the
use of impermissible hindsight. Here, in an attempt to
justify the
2Appellant argues on pages 14 and 15 of the brief that
Nicko constitutes non-analogous art.
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