Appeal No. 2003-0176
Application 08/909,590
apparently is referring to lines 51-59 of column 4 of Koal,
wherein Koal states:
As shown in FIG. 1, the entire connecting tail and the
peripheral border of the sensor body outside the foil
connecting plate would all be etched so as to be
inoperative in piezoelectric effect. This etching is
not necessary for the functioning of the piezoelectric
sensor but it is desirable to eliminate irregularities
and electrical noise caused by imperfections in the
plastic material, especially about the periphery of the
sensor where such imperfections are most probable in
occurrence.
The examiner does not explain, and it is not apparent, how this
disclosure would have led one of ordinary skill in the art to
eliminate Tabota’s intermediate electrode.
As indicated by the above discussion, the examiner has used
impermissible hindsight in rejecting the appellants’ claims. See
W.L. Gore & Associates v. Garlock, Inc., 721 F.2d 1540, 1553, 220
USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851
(1984); In re Rothermel, 276 F.2d 393, 396, 125 USPQ 328, 331
(CCPA 1960).
The examiner argues that “there are many well known, common
sense reasons to limit the polarized or active area of a
piezoelectric device. Harnden and Koal just teach some of them”
(answer, page 5). This argument is not well taken because
“‘[c]ommon knowledge and common sense,’ even if assumed to derive
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