Appeal No. 1998-2919
Application No. 08/405,063
boron concentration of Flatley. Again, we find nothing and
the examiner points to nothing in these references which would
have led an artisan to selectively pick and choose from
Flatley's teachings in this manner. Only by inappropriately
using the appellants' own disclosure as a blueprint would the
artisan have been guided to such picking and choosing.
These circumstances compel us to determine that the
examiner's rejection is based upon impermissible hindsight.
W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-313 (Fed. Cir. 1983), cert. denied, 469 U.S.
851 (1984). It follows that we cannot sustain the examiner's
§ 103 rejection of the appealed claims as being unpatentable
over Lee '333 and combination with Flatley and Lee '101.
The decision of the examiner is reversed.
REVERSED
JOHN D. SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
BRADLEY R. GARRIS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
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