Appeal No. 2003-1352
Application 09/282,865
are the result of hindsight reconstruction. Since we have
determined that the teachings and suggestions which would have
been fairly derived from Dmitroff, Grimm and Stolarczyk, and from
Dmitroff and Stolarczyk would not have made the subject matter as
a whole of claims 37 and 39, or claims 46 and 47, obvious to one
of ordinary skill in the art at the time of appellant’s
invention, we must refuse to sustain the examiner’s rejections of
those claims under 35 U.S.C. § 103(a).2
2 Since we have concluded that the examiner has failed to
establish a prima facie case of obviousness with regard to the
claimed subject matter before us on appeal, we find it
unnecessary to comment on appellant’s evidence of secondary
considerations relating to long felt need, failure by others and
superior results.
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