Appeal No. 2003-0858 Page 13
Application No. 09/557,509
The appellant's argument
The appellant argues that the applied prior art does not suggest the claimed
subject matter. Specifically, the appellant asserts that absent the use of impermissible
hindsight1 there is no suggestion in the applied prior art to have modified Asaro's
upholstery pad unit based upon the teachings of Long to arrive at the claimed subject
matter.
Our position
After reviewing the teachings of Asaro and Long, we find ourselves in agreement
with the appellant that there is no suggestion in the applied prior art to have modified
Asaro's upholstery pad unit based upon the teachings of Long to arrive at the claimed
subject matter. In that regard, Long does not disclose a bedding or seating product
having a topper. Long teaches to replace the prior art practice of interconnecting bands
of coil springs by lacing them together by means of helical lacing wires with bands of
coil springs 23 encased within spring pockets. Since the coil springs 12 in Asaro's
upholstery pad unit are pocketed and not laced together by means of helical lacing
wires, we see no reason, absent the use of impermissible hindsight, why a person of
1 The use of hindsight knowledge derived from the appellant's own disclosure to support an
obviousness rejection under 35 U.S.C. § 103 is 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).
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