Appeal No. 1998-2032
Application No. 08/410,048
the form of a plate. In each of these secondary references
the former member is a triangular framework made of bar
stock such as tubular members. Following these teachings,
one of ordinary skill in the art would have substituted the
triangular frame of the secondary references for the bar
like former member in the Baldacci references. Such a
modification, however, obviously would not meet the terms
of the independent claims on appeal inasmuch as each of the
independent claims requires the triangular former member to
be in the form of a plate, not a frame.
The examiner nonetheless attempts to somehow combine
the feature of the flat bottom of the bar like former
member in the primary references (i.e., the Baldacci
patents) with the triangular shape of the forming frames in
the secondary references in order to arrive at appellant=s
claimed invention. However, the only way the examiner
could have arrived at such a piecemeal reconstruction of
the prior art is through hindsight based on appellant=s
teachings. Hindsight analysis, however, is clearly
improper. In re Deminski, 796 F.2d 436, 443, 230 USPQ 313,
316 (Fed. Cir. 1986).
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