Ex parte MUELLER - Page 7




          Appeal No. 1997-3814                                       Page 7           
          Application No. 08/601,461                                                  


          stamp after consumption of the confection.  However, these                  
          limitations are not suggested by the applied prior art.  In                 
          that regard, while some of the applied prior art (i.e.,                     
          Collier, Perez, D'Avignonet, Hodska and Caggiano) do teach a                
          frozen confection having a toy and some of the applied prior                
          art (Zabriskie, Chamberlain and Wheless) do teach a hand stamp              
          combined with another conventional element, the applied prior               
          art would not have suggested providing the plunger member of a              
          "push-up" type package for a frozen confection with a raised                
          printing surface which can be used as a novelty ink stamp                   
          after consumption of the confection.  In our view, the only                 
          suggestion for modifying the appellant's admission of prior                 
          art as evidenced by Stump to meet the above-noted limitations               
          stems from hindsight knowledge derived from the appellant's                 
          own disclosure.  The use of such hindsight knowledge to                     
          support an obviousness rejection under 35 U.S.C.  103 is, of               
          course, impermissible.  See, for example, W. L. Gore and                    
          Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220                 
          USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851               
          (1984).  It follows that we cannot sustain the examiner's                   
          rejections of claims 1 to 8.                                                







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