Appeal No. 2004-0227
Application 09/140,151
is measured through the envelope as to its capacitance variation
information, and the measured information is compared to the
stored random distribution rather than being compared to
Verschuur’s information on similar patterns.
The examiner has not adequately explained how Verschuur,
Brosow and Stockburger themselves would have fairly suggested, to
one of ordinary skill in the art, making these modifications to
Verschuur. Hence, the record indicates that the examiner used
impermissible hindsight when rejecting the 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).
Accordingly, we reverse the examiner’s rejections.
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