Appeal No. 2002-2194 Page 5
Application No. 09/594,532
include a plurality of tow bodies based upon Lefebvre's teaching of a plurality of tow
buoys.
The appellant argues that the applied prior art does not suggest the claimed
subject matter. We agree. Specifically, it is our opinion that there is no suggestion in
any of the applied prior art for a person of ordinary skill in the art at the time the
invention was made to have modified the towed vehicle of Spink to have positive
buoyancy. In that regard, while Lefebvre's tow buoys do have positive buoyancy,
Lefebvre does not teach or suggest using or making a towed underwater vehicle, such
as taught by Spink, positive buoyant since a buoy is designed to float on the surface of
the water and an underwater vehicle is designed to be beneath the surface of the
water.1 Thus, it is our view that the only suggestion for modifying Spink in the manner
proposed by the examiner to meet the above-noted limitations stems from hindsight
knowledge derived from the appellant's own disclosure. The use of such hindsight
knowledge 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).
1 U.S. Patent No. 3,434,446 to Cole and U.S. Patent No. 4,197,491 to Hagemann both appear to
teach a positively buoyant towed underwater vehicle. See column 3, lines 1-3, of Cole and column 3, lines
10-21, of Hagemann.
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