Appeal No. 97-3173
Application No. 08/462,310
disclosed therein is "preferably formed of a moldable,
castable or injectable material, such as a plastic material"
(col. 3, lines 64-67). Since Austin and Strickland each teach
that their
respective structures are capable of being fabricated of
plastic
using conventional molding techniques, we cannot subscribe to
the examiner's determination that one of ordinary skill in the
art at
the time of appellants' invention would have been motivated to
construct the frame disclosed in Austin using rod shaped ribs
as taught by Strickland because it would have been simpler and
cheaper to make. Thus, we must conclude that the examiner
used impermissible hindsight.6
The conclusion that the claimed subject matter is obvious must be6
supported by evidence, as shown by some objective teaching in the prior art or
by knowledge generally available to one of ordinary skill in the art that
would have led that individual to combine the relevant teachings of the
references to arrive at the claimed invention. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). The examiner may not, because of
doubt that the invention is patentable, resort to speculation, unfounded
assumption or hindsight reconstruction to supply deficiencies in the factual
(continued...)
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