Appeal No. 2002-1591
Application No.09/616,503
examiner’s rejection of dependent claims 68 through 71 will also
not be sustained.
With regard to the examiner’s alternative rejection of
dependent claims 48 and 65 under 35 U.S.C. § 103(a) as being
unpatentable over Turner ‘858 in view of Richter, the examiner
has determined that it would have been obvious to modify the
window shutter system of Turner ‘858 “whereby his couplers are
replaced with the couplers of Richter et al since the Richter et
al couplers permit adjustability of the angles between the
elongate members, thereby expanding the design capabilities of
the system” (final rejection, page 3). Like appellant, we find
no basis in the combined teachings of Turner ‘858 and Richter for
modifying the window shutter system of Turner ‘858 in the manner
urged by the examiner. In that regard, we are of the view that
the examiner is using the hindsight benefit of appellant’s own
disclosure to pick and choose elements from the applied
references, and then selectively combine the chosen disparate
elements in an attempt to reconstruct appellant’s claimed subject
matter. However, as our court of review indicated in In re
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780 (Fed. Cir. 1992), it
is impermissible to use the claimed invention as an instruction
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