Appeal No. 1999-1899 Page 12
Application No. 08/932,090
the examiner fails to establish a prima facie case, the
rejection is improper and will
be overturned. See In re Fine, 837 F.2d 1071, 1076, 5 USPQ2d
1596, 1600 (Fed. Cir. 1988).
Oldham's portable disposal system for solid and aerosol
waste (column 1, lines 6-9) is open to ambient air (Figs 1 and
2) and operates such that the filter (26) removes aerosol
contaminants and the bag (32) receives solid waste (column 2,
lines 33-42). We do not find any teaching or suggestion in
either Oldham or Ruemelin to support the examiner's reasoning
for modifying Oldham "so that airflow in the apparatus of
Oldham flows from a point outside the housing of Oldham
directly through the primary and at least one secondary inlet
of Oldham into the interior of the housing, and so that
smaller airborne particles of the apparatus of Oldham are
discharged through at least one secondary inlet while larger
particles are discharged through a primary inlet" (answer,
page 6). Hence, it is our opinion that the examiner's
rejection is based on hindsight reconstruction of the subject
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