Appeal No. 2002-1050
Application 09/425,505
tool, and to utilize the number of flutes as a cutting
condition.2
As convincingly argued by the appellants (see pages 2 and 3
in the reply brief), however, Gerber’s corrective yawing motions
are incompatible with a rotating cutting tool of the sort
disclosed by Tucker. The examiner’s attempt to overcome this
incongruity by proposing that it would have been further obvious
to modify Gerber’s corrective motions to accommodate Tucker’s
tool (see page 5 in the answer) lacks the requisite evidentiary
support and clearly stems from an impermissible hindsight
reconstruction of the claimed invention.
Thus, we shall not sustain the standing 35 U.S.C. § 103(a)
rejection of claim 5 as being unpatentable over Gerber in view of
Tucker.
SUMMARY
The decision of the examiner to reject claims 1 through 5 is
affirmed with respect to claims 1 through 4 and reversed with
respect to claim 5.
2 In explaining the rejection (see page 3 in the answer),
the examiner neglects to set forth exactly how Gerber and Tucker
are intended to be combined.
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