Appeal No. 2002-2089
Application No. 09/482,237
1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied,
469 U.S. 851 (1984).
As additional support for his obviousness conclusion, the
Examiner urges that “there is enough motivation suggested by the
cited [Falco ‘574 and Brueggemann] references for a person with
ordinary skill in the art to combine both references and end up
with the claimed subject matter because both references are
directed to solve the same problem, which is to form a device that
works as a sound dampening.” (answer, page 13). We cannot agree.
According to the disclosure of Falco ‘574, patentee’s stem member
performs the function of attaching a hearing protector to a head
band frame. While the hearing protector performs a sound dampening
function, the Examiner points to nothing in this reference which
associates a sound dampening function with patentee’s stem
member. Plainly, the Examiner’s rationale once again is based
on impermissible hindsight derived from the Appellant’s own
disclosure. W.L. Gore & Assocs. v. Garlock Inc., 721 F.2d at
1553, 220 USPQ at 312-13.
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