Appeal No. 1997-2632
Application No. 08/163,902
references that composting would be an effective method to
reactivate spent diatomite filtering agent for any purpose let
alone for use as an insecticidally active material as part of
a soil amendment.
It is our view that the motivation for the examiner's
stated rejection appears to come solely from the description
of the method at issue in appellant's specification.
Certainly, the examiner has not convincingly established how
the applied references' teachings would have led a skilled
artisan to the herein claimed process. Thus, the record
indicates that the examiner used impermissible hindsight when
rejecting the claims. See W.L. Gore & Associates v. Garlock,
Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir.
1983), cert. denied, 469 U.S. 851 (1984); In re Rothermel, 276
F.2d 393, 396, 125 USPQ 328, 331 (CCPA 1960). Accordingly, we
will not sustain the examiner's rejection of method claims 1,
2, 4 and 5 for the reasons set forth above and as developed in
appellant's brief.
Rejection of Claims 3 and 6
Our disposition of the examiner's § 103 rejection as
applied to claims 3 and 6 is another matter. Since appealed
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