Appeal No. 1999-2776
Application No. 08/714,249
solution spreads across the openings (31) and allows the
formation of bubbles when air moves through the openings.
According to the examiner, it would have been obvious to one
of ordinary skill in the art to have provided a Rogahn disc
with dual apertured layers as taught by Danielak, “in order to
make the maximum use of the bubble fluid by causing most to be
used in bubbles with little being spun off or allowed to dry
before use” (answer, pages 3-4).
Like appellant (brief, pages 4-6), absent knowledge of
appellant’s invention, we see nothing in Rogahn and Danielak
which would have suggested their combination in the manner
urged by the examiner. In our opinion, the examiner has used
impermissible hindsight derived from appellant’s own teachings
to reconstruct the flying toy of Rogahn based on concepts
found in the jump rope of Danielak so as to result in a
structure which is responsive to that set forth in claims 1,
2, 7 and 8 on appeal. Moreover, the examiner has hypothesized
concerning certain advantages to be derived in the flying toy
of Rogahn by making the proposed modifications therein,
without any teaching or suggestion of any such advantages in
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