Appeal No. 1997-3537
Application No. 08/395,867
Based on this record, we find that the examiner has relied on impermissible
hindsight in making her determination of obviousness. In re Fritch, 972 F.2d 1260, 1266,
23 USPQ2d 1780, 1784 (Fed. Cir. 1992) (“It is impermissible to engage in hindsight
reconstruction of the claimed invention, using the applicant’s structure as a template and
selecting elements from references to fill the gaps”).
Accordingly, the rejection is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject claims 1-14 under
35 U.S.C. § 103(a) as unpatentable over Thibault or Martinez either in view of Karjalainen
is reversed.
REVERSED
SHERMAN D. WINTERS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CAROL A. SPIEGEL ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
TONI R. SCHEINER )
Administrative Patent Judge )
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