Appeal No. 2002-1548
Application No. 09/408,042
roof arches supported above the roof sheet as the examiner has
hypothesized. For this additional reason, it is clear that the
examiner’s proposed rejection under 35 U.S.C. § 102(b) relying on
Figure 4 of Dominguez is not sustainable.
In light of the foregoing, the examiner’s rejection of
claims 1, 3 through 8, 11 through 14 and 16 through 20 under 35
U.S.C. § 102(b) as being anticipated by Dominguez will not be
sustained.
As for the examiner’s rejection of dependent claim 9 under
35 U.S.C. § 103(a) as being unpatentable over Dominguez in view
of Ferdows, we have reviewed these two patents, but find nothing
therein which would have led one of ordinary skill in the art at
the time of appellants’ invention to the combination posited by
the examiner, or to any combination thereof which would have
resulted in the particular car body structure defined in the
claims before us on appeal. In that regard, we are of the view
that the examiner’s position represents a classic case of the
examiner using impermissible hindsight derived from appellants’
own disclosure in an attempt to reconstruct the claimed subject
matter from disparate teachings and broad concepts present in the
applied prior art. Thus, the examiner’s rejection of claim 9
under 35 U.S.C. § 103(a) will not be sustained.
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