Appeal No. 2001-2625 Page 10
Application No. 09/458,052
air flows into Shay's down tube element 32' (i.e., air flowing
through vent holes in the down tube which is seatingly held by
the plug) since Chester does not teach or suggest air flowing
down a down tube and then up a dip tube to a discharge nozzle.
Thus, it appears that the only suggestion for modifying Shay
in the manner proposed by the examiner to meet the above-noted
limitation stems from hindsight knowledge derived from the
appellants' 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, W. L.
Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S.
851 (1984). It follows that we cannot sustain the examiner's
rejections of claims 5 to 20. 5
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 to 20 under 35 U.S.C. § 251 is reversed and the
5We have also reviewed the reference to McRoskey but find
nothing therein which makes up for the deficiencies of Shay
and Chester discussed above.
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