Appeal No. 1998-1825
Application No. 08/658,014
uniform control over film tension" (col. 9, line 68-col. 10,
line 3). This statement by Asar further indicates that
tension is dependent on the brake, as opposed to the
operation of the brake being dependent on the tension of the
plastic film.
Given the foregoing discussion, we agree with the
appellants' argument that the apparatus for producing
packaging material having adhered a teartape thereto of
appellants' claim 8 would not have been obvious to one of
ordinary skill in the art based upon the teachings of Huck and
Asar. In determining the differences between the prior art
and the claims, the question under § 103 is not whether the
differences themselves would have been obvious, but whether
the claimed invention as a whole would have been obvious,
Stratoflex, Inc. V. Aeroquip Corp., 713 F.2d 1530, 1537, 218
USPQ 871, 877 (Fed. Cir. 1983). In our view, the claimed
invention as a whole has not been evaluated by the examiner.
Therefore, we conclude that the examiner used impermissible
hindsight in combining Huck and Asar to arrive at appellants'
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