Appeal No. 2000-0605
Application No. 08/803,779
the selected pieces from the references together in the manner
proposed by the examiner is found in the luxury of hindsight
accorded one who first viewed the appellant's disclosure.
This, of course, is not a proper basis for a rejection. See
In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed.
Cir. 1992).
Accordingly, we shall not sustain the examiner's
rejection of independent claim 13, or of claims 2, 7-10 and
14-17 which depend from claim 13, as being unpatentable over
Hillier in view of Kobayashi.
Rejection (2)
In making this rejection, the examiner implicitly
concedes that Kobayashi does not teach or suggest the use of
the disclosed composition for use in containers of the type
recited in claim 13. The examiner, however, finds suggestion,
in the teaching by Mueller of blending a high molecular weight
stabilizer into the copolyester outer layer of a multi-layer
2(...continued)
not, because of doubts that the invention is patentable, resort to
speculation, unfounded assumptions or hindsight reconstruction to supply
deficiencies in the factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 177-78 (CCPA 1967).
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