Appeal No. 1999-0639 Page 6
Application No. 08/592,109
rather than the ladder shoe would require only one cut rather
than two cuts, thereby minimizing potential for slot
misalignment due to bending of the parallel ladder foot
members. However, the examiner has not supported this
contention with evidence that slot misalignment is a problem
associated with the construction disclosed by Kiska. There is
certainly no indication that Kiska recognized such a problem
and it is not apparent to us that the arrangement disclosed by
Kiska (two aligned slots in the side plate portions of the
ladder shoe flanking an aligned aperture in the ladder rail)
would necessarily present any increased potential for
misalignment as compared with the modified arrangement
proposed by the examiner (two aligned apertures in the side
plate portions flanking an aligned slot in the ladder rail).
Accordingly, it appears to us that, in rejecting claims 1
through 13, the examiner has relied on impermissible hindsight
using the appellant's claims as a template to reconstruct the
invention.
Moreover, with regard to claims 11 and 12, contrary to
the examiner's assertion (answer, page 5), we find no teaching
in Kiska of the steps of placing the feet of the ladder shoes
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