Appeal No. 1998-0038
Application No. 08/236,780
to be effective. In re Sebek, 465 F.2d 904, 907, 175 USPQ 93,
95 (CCPA 1972).
Plainly, the only motivation for using energy levels of
the type here claimed flows from the appellants' own
disclosure rather than from the disclosure of George. It
follows that the obviousness conclusion under review is based
upon impermissible hindsight rather than a prior art teaching
or suggestion. W. L. Gore & Assocs. v. Garlock, Inc., 721
F.2d 1540, 1553, 220 USPQ 303, 312-313 (Fed. Cir. 1983), cert.
denied, 469 F.2d 851 (1984). As a consequence, we also
cannot sustain the examiner's Section 103 rejection of claims
1-4, 15 and 18 as being unpatentable over George.
The decision of the examiner is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
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