Ex Parte CROYLE - Page 11




              Appeal No. 2002-1778                                                                Page 11                 
              Application No. 09/285,078                                                                                  


                     Dependent claims 4 and 5 include the limitation that the band and the clamp are                      
              integral in a unitary construction and comprise a plastic.                                                  


                     In our view, absent the use of impermissible hindsight6, there is no teaching,                       
              suggestion or motivation in the applied prior art (i.e., Jacks, Gallagher, Kaber and                        
              Moore) to make Jacks main spring clip 1 and secondary spring clip 2 integral in a                           
              unitary construction and comprise a plastic.  While Kaber does teach a band and a                           
              clamp that are integral in a unitary construction, it is our opinion that Kaber would not                   
              have suggested modifying Jacks' main spring clip 1 and secondary spring clip 2 to be                        
              integral in a unitary construction since Jacks teaches specifically to allow the secondary                  
              spring clip 2 to pivot about the main spring clip 1 and that removing this functionality                    
              would not have been obvious at the time the invention was made to a person of                               
              ordinary skill in the art from the teachings of the applied prior art.                                      


                     For the reasons set forth above, the decision of the examiner to reject claims 4                     
              and 5 under 35 U.S.C. § 103 is reversed.                                                                    




                     6 The use of hindsight knowledge derived from the appellant's own disclosure 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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