Appeal No. 1997-4213
Application No. 08/359,407
extension above the slotted opening. Moreover, there is no
teaching in Brozak or Fearing that the securing systems they
disclose “better secure the clip” or are “stronger” than that
of O’Brien, to use the language of the examiner in explaining
the rejection on page 4 of the Answer. This being the case,
there would appear to be no reason why the artisan would have
been motivated to modify the O’Brien clip, thus merely
providing an additional means for accomplishing the same task.
It is our view that the only suggestion for combining the
teachings of the three applied references in the manner
proposed by the examiner is found in the luxury of the
hindsight accorded one who first viewed the appellant’s
disclosure. This, of course, is not a proper basis for a
rejection under 35 U.S.C. § 103. See In re Fritch, 972 F.2d
1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
The references thus fail to establish a prima facie case
of obviousness with regard to the subject matter of
independent claims 1 and 2 or, it follows, of claims 3-5,
which depend therefrom.
The rejection is not sustained.
The decision of the examiner is reversed.
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