Appeal No. 1999-2126 Page 7
Application No. 08/857,938
filter of Robinson ‘241 by replacing the single central tube
with a double walled tube. From our perspective, to do so
would solve no problem and provide no improvement; it merely
would be another way of accomplishing the same task. We can,
however, perceive a disincentive to do so, in that such a
modification would require a wholesale reconstruction of the
Robinson ‘241 device.
Thus, it is our opinion that the only suggestion to
combine the teachings of any of Wilkinson, Gebert and Burhans
with those of the two Robinson patents is found in the
hindsight accorded one who first viewed the appellants’
disclosure. This, of course, is impermissible as a basis of a
rejection under 35 U.S.C. § 103. See In re Fritch, 972 F.2d
1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992). In the
final analysis, the teachings of the applied references fail to
establish a prima facie case of obviousness with regard to the
subject matter of claim 19. This being the case, we will not
sustain the rejection of independent claim 19 or, it follows,
of dependent claims 20, 21, 23 and 24.
The rejection is not sustained.
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