Appeal No. 2001-1402
Application 09/287,838
would have been obvious to construct the object/emblem
with any appropriate change in appearance such as [a]
figurine or any other desired aesthetic design, In re
Seid [,61 F.2d 229,] 73 USPQ 431 [(CCPA 1947)].
We will not sustain this rejection. “A rejection based
on section 103 clearly must rest on a factual basis, and these
facts must be interpreted without hindsight reconstruction of
the invention from the prior art.” In re GPAC, Inc., 57 F.3d
1573, 1582, 35 USPQ2d 1116, 1123 (Fed. Cir. 1995). In this
rejection, the examiner has not cited any evidence as to why
it would have been obvious to use a figurine as the amusement
or ornamental device of Handzlik, so that the rejection would
appear to be based on impermissible hindsight derived from
appellant’s own disclosure. The In re Seid case (decided
prior to the 1952 Patent Act) does not aid the examiner, in
that it concerns the patentability of the particular shape and
arrangement of a figure, and not whether it would have been
obvious to use a figure instead of a non-figure.
Conclusion
Rejection (1) is affirmed as to claims 1, 3, 5, 6 and 25,
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