Appeal No. 2001-1679 Page 6
Application No. 08/849,336
differences is not correct. Lister and Kümmerlin also fail to disclose (1) each of the rims
of the stepping surface (i.e., the front rim, the rear rim and the two side rims) being
provided with plate members having downwardly bent portions welded together at
corners where said plate members abut one another due to the bending; and (2) welds
at locations where ends of the cylindrical pipes abut the plate members bent downward
at the side rims.
Thus, even if Lister or Kümmerlin were to be modified in the manner set forth in
the rejection of claim 6, one would not arrive at the claimed invention since such
modifications of either Lister or Kümmerlin would not result in a plate-shaped stair step
having a stepping surface with a front rim, a rear rim and two side rims wherein each of
the rims are provided with plate members having downwardly bent portions welded
together at corners where the plate members abut one another due to the bending.
In addition, it is our view that absent the use of hindsight knowledge derived from
the appellant's own disclosure3 there is no motivation or suggestion in the applied prior
art to have modified either Lister or Kümmerlin to have a stepping platform with the
front and rear rims rolled over to form a cylindrical pipe as recited in claim 6. Lastly,
3 The use of such hindsight knowledge to support an obviousness rejection under 35 U.S.C. § 103
is, of course, impermissible. See, for example, W. L. Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d
1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984).
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