Appeal No. 1998-2919
Application No. 08/405,063
apply Flatley's teaching to the second layer specifically of
Lee '333. This deficiency suggests to us that the examiner
has applied impermissible hindsight in reaching his conclusion
of obviousness.
Even if an artisan were to consider Flatley's teaching as
applicable to the Lee '333 second layer specifically, the
rejection formulated by the examiner still would be deficient.
This is because the rejection is based upon the proposition
that the artisan, in so applying the teaching of Flatley to
Lee '333, would have selectively focused only upon the
phosphorus content while ignoring the boron content taught in
these references. It appears to us that the application of
Flatley's teaching to the second layer of Lee '333 would
result in the use of Flatley's boron as well as his phosphorus
concentrations in this second layer. Of course, this result
would include boron concentrations which are outside the here
claimed range.
Thus, in order to modify the second layer of Lee '333 so
as to result in boron and phosphorus concentrations which are
both within the here claimed ranges, an artisan would have to
focus on only the phosphorus concentration while ignoring the
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