Appeal No. 2003-0930 Page 4
Application No. 09/550,555
secure the insulator on the fence post. From this teaching of Zimmerman, the examiner
concludes that it would have been obvious to one of ordinary skill in the art at the time
the invention was made to insulate the electrodes of Betzen from each other. We do
not agree.
In our view, Zimmerman provides no teaching, suggestion or motivation to have
provided the electrodes of Betzen with an electrode separator to hold the crisscrossing
electrodes in place while preventing contact between the electrodes. In that regard,
Zimmerman's insulator is for supporting an electric wire on a fence post, not for
preventing contact between crisscrossing electrodes. Accordingly, we must conclude
that the rejection under appeal stems from hindsight knowledge derived from the
appellant's own disclosure. The use of such hindsight knowledge is, of course,
impermissible.3
For the reasons set forth above, the decision of the examiner to reject claims 3
and 4 under the judicially created doctrine of double patenting is reversed.
3 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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