Appeal No. 1998-1426
Application No. 08/315,350
claim 33 under 35 U.S.C. § 103(a) as being unpatentable over
Durkop in view of Bliss and further in view of Reese. While
the patent to Reese is directed to a storage tank system for
above ground storage of flammable liquids, we find nothing
therein which would overcome or supply that which we have
indicated above to be lacking in the basic combination of
Durkop and Bliss. We agree with appellants that "the
rejection provides no teaching or suggestion as to why it
would be [sic, have been] obvious to combine the teaching of
an above-ground tank as provided by Reese with the teaching of
an underground tank as taught by Durkop or with the teaching
of a cryogenic tank having a 'building' type construction as
taught by Bliss" (reply brief, page 4). As before, it is our
view that the teachings of the prior art relied upon by the
examiner (i.e., Durkop, Bliss and Reese) as suggesting the
subject matter of independent claim 33 are only sufficient
when modified or combined with impermissible hindsight.
Thus, we will not sustain the examiner’s rejection of
independent claim 33, and claim 34 dependent thereon, under
35 U.S.C. § 103(a) as being unpatentable over Durkop in view
of Bliss and Reese.
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