Appeal No. 2003-0806 Page 9
Application No. 09/219,275
Further, the examiner’s stated motivation for providing a housing around the
spraying apparatus appears to be based on speculation or unfounded assumption, as
we find no support in any of the applied references that deposits on the sprayer 35 are
a problem with the fluidized bed apparatus of Imanidis, wherein the particles to be
coated remain below the sprayer 35 (see column 8, lines 3-8 of Imanidis). Moreover,
even assuming that it would have been obvious to provide a housing of the type
disclosed by Melliger around the sprayer 35 of Imanidis, the invention recited in
appellants’ claim 1 would not result, as Melliger’s housing (see Figure 3 of Melliger)
does not have “an elongated wand-shape” and thus would not impart such a shape to
the sprayer, as called for in claim 1.
Simply stated, from our perspective, the only suggestion for putting the selected
pieces from the references together in the manner proposed by the examiner is found
in the luxury of hindsight accorded one who first viewed the appellants' disclosure.
This, of course, is not a proper basis for a rejection. See In re Fritch, 972 F.2d 1260,
1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992). We thus shall not sustain the
examiner’s rejection of independent claims 1 and 22 or claims 4, 5, 15, 16, 18, 21, 23-
25 and 28 depending therefrom.
Boos, relied upon by the examiner for its teaching of a rotor disc and screen as
alternatives in a fluidized bed processing system (see column 8, lines 55-56), provides
no cure for the above-mentioned deficiency in the combination of Imanidis, Martin and
Melliger with reference to claims 1 and 22. Thus, we shall also not sustain the rejection
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