Appeal No. 2002-0022 Page 5
Application No. 09/161,071
F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re Lintner, 458 F.2d
1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
We will not sustain the rejection of claims 39 to 50 since the claimed subject matter
is not suggested by the combined teachings of the applied prior art. All the claims under
appeal require the cleat to include a body having either an annular ring which encircles a
hemispherical chamber (independent claim 39) or at least one annular ring having a
substantially hemispherical chamber (independent claim 42). The examiner correctly
ascertained (answer, p. 3) that Pierce did not teach a cleat having a body with a
hemispherical chamber within an annular ring. Next, the examiner determined (answer, p.
3) that Castioni teaches a cleat having concentric annular rings with a hemispherical
chamber within the rings. We do not agree. While Castioni clearly teaches a cleat having
concentric annular rings we fail to find any teaching that the chamber circumscribed by the
innermost annular ring is either substantially hemispherical or hemispherical. The
examiner's finding that the chamber circumscribed by the innermost annular ring of
Castioni is hemispherical is without support and, in our view, is clearly based on shear
speculation based upon hindsight knowledge derived from the appellant's own disclosure.3
In addition, we note that MacNeill has no such hemispherical chamber or substantially
hemispherical chamber.
The use of such hindsight knowledge to support an obviousness rejection under 35 U.S.C. § 1033
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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