Appeal No. 2002-2089
Application No. 09/482,237
material having a glass transition temperature within the range
defined by appealed claim 1). On page 5 of the answer, the
Examiner expresses his opposing viewpoint in the following manner:
It would have been obvious to a person
with ordinary skill in the art to formed the
Falco et al. stem member from the material
disclosed by Brueggemann et al. because the
material have the property of having a glass
transition temperature between a range of
ambient temperature and the internal human
temperature. The property is useful to
maintain the stem stiff during the insertion of
the earplug and then once inserted the stem
would decrease it stiffness to make the earplug
comfortable to the user.
Manifestly, the Examiner’s above quoted rationale is
defective. Neither of the references under consideration contains
any disclosure relating to a property involving glass transition
temperatures “between a range of ambient temperature
and the internal human temperature” (id.) or a property which “is
useful to maintain the stem stiff during the insertion of the
earplug and then once inserted the stem would decrease in stiffness
to make the earplug comfortable to the user” (id.). It is only
the Appellant’s specification which contains disclosure of
such a property. It is apparent therefore, that the Examiner’s
aforequoted conclusion of obviousness is based upon impermissible
hindsight. See W.L. Gore & Assocs. v. Garlock Inc., 721 F.2d 1540,
44
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