Appeal No. 1999-0605
Application No. 08/697,214
refuse to sustain the examiner’s rejection of claim 1, and of dependent claims 5 and 6,
under 35 U.S.C. § 103 based on Trimmer and Simons.
We have also reviewed the teachings of Sheppard applied by the examiner along with
Trimmer and Simons against claims 1, 5 and 6 on appeal under 35 U.S.C. § 103.
However, we find nothing in the combined teachings of these patents which would have
made the subject matter as a whole of claim 1 on appeal obvious to one of ordinary skill in
the art. Again, we note, as appellant has, that none of the applied references discloses,
teaches or suggests “a permanently bendable aluminum rod” sized as required in
appellant’s independent claim 1 on appeal. In this regard, we note that the examiner’s
characterization of the helical coil spring (36) of Sheppard as a “permanently bendable
metal rod” (answer, page 5) is factually incorrect. Moreover, given the disparate nature of
the flexible, bendable arms in the various applied references, we share appellant’s view
that the examiner has relied upon improper hindsight in attempting to combine Sheppard,
Trimmer and Simons in the manner urged in the examiner’s answer. Thus, the rejection of
claims 1, 5 and 6 under 35 U.S.C. § 103 based on Sheppard, Trimmer and Simons will not
be sustained.
As for the additional patent to Bast applied against dependent claims 7, 8 and 10 on
appeal, we have reviewed this patent, but find nothing therein which alters our view as
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