Appeal No. 2004-0240
Application No. 09/730,867
infirmities of Miller, it is our determination that the Examiner
has formulated the rejections before us based upon impermissible
hindsight. See W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d
1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied,
469 U.S. 851 (1984). It follows that we cannot sustain the
Examiner’s Section 103 rejections of claims 1-4 based on
Hotchkiss in view of Miller and of claims 5-9 based on Oka in
view Hotchkiss and Miller.
The decision of the examiner is reversed.
REVERSED
)
)
BRADLEY R. GARRIS )
Administrative Patent Judge ) BOARD OF PATENT
) APPEALS AND
) INTERFERENCES
)
)
CATHERINE TIMM )
Administrative Patent Judge )
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