Appeal No. 1998-2217
Application No. 08/644,555
dewatered in a high intensity extended nip press. See
Specification, p. 9.
Therefore, in view of the record before us, the rejection
based on Bluhm appears to be nothing more than a hindsight
reconstruction of the claimed invention. See In re Gorman,
933 F.2d 982, 986-87, 18 USPQ2d 1885, 1888 (Fed. Cir. 1991)
(in a determination of obviousness under 35 U.S.C. § 103, it
is impermissible to engage in a hindsight reconstruction of
the claimed invention, using the applicant's structure as a
template and selecting elements from the references to fill
the gaps). For this reason, the rejection is reversed. See
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992) (the examiner bears the initial burden of
presenting a prima facie case of unpatentability).
The second rejection under 35 U.S.C. § 103 is based on
Steiner in view of Bluhm and GB ‘473, Klowak or Weldon.
Steiner is said to disclose a method for producing tissue
paper using an extended nip press to dewater the tissue web.
See Answer, p. 4. However, as pointed out by appellants, the
Steiner process does not use “modified wet-resilient fibers.”
See Brief, p. 3. GB ‘473, Klowak and Weldon fail to cure the
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