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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