Appeal No. 2000-1486 Page 11
Application No. 08/968,871
inappropriate in this instance for the examiner to have
determined that the limitation that the tubular body member is
in the form of a generally closed oval in cross-section when
in repose was obvious without any evidence providing some
motivation, suggestion or teaching of the desirability of
making that change to Lennon.
In our view, the only suggestion for modifying Lennon to
arrive at the claimed invention in the manner proposed by the
examiner stems from hindsight knowledge derived from the
appellant's own disclosure. The use of such hindsight
knowledge to support an obviousness rejection under 35 U.S.C.
§ 103 is, of course, impermissible. See, for example, In re
Dembiczak, supra; W.L. Gore & Assocs., Inc. v. Garlock, Inc.,
supra.
For the reasons set forth above, the decision of the
examiner to reject claim 21, and claims 22 to 25 dependent
thereon, under 35 U.S.C. § 103 is reversed.
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