Appeal No. 2003-1349 Page 11
Application No. 09/768,969
covering as taught by Bulzomi with the materials of Latzke to allow the foot to be
uniformly warmed.
In our view, the teachings of Bulzomi would not have made it obvious at the time
the invention was made to a person of ordinary skill in the art to have modified Latzke
to be a foot cover as set forth in claims 9 to 13 and 15. In our view, the only suggestion
for modifying Latzke to arrive at the claimed invention 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).
For the reasons set forth above, the decision of the examiner to reject claims 9
to 13 and 15 under 35 U.S.C. § 103 as being unpatentable over Latzke in view Bulzomi
is reversed
The obviousness rejection based on Latzke in view of Bulzomi and Terry
We will not sustain the rejection of claim 16 under 35 U.S.C. § 103 as being
unpatentable over Latzke in view Bulzomi as applied to claims 9 to 13 and 15 above,
and further in view of Terry. We have reviewed the reference to Terry additionally
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