Appeal No. 2004-0323 Page 18
Application No. 09/716,045
With regard to this difference, in applying the test for obviousness,4 we reach the
conclusion that it would have been obvious at the time the invention was made to a
person of ordinary skill in the art to provide Kitchen's column of air to the bottom of the
vertical chamber via Larsen's apparatus for creating a vertically directed air flow having
a generally even, uniform flow (i.e., nonturbulent flow, laminar flow). The motivation for
this change is Larsen's teaching to avoid turbulent air flow and create the desired
laminar flow by an arrangement allowing the motor and fan to be remotely placed from
the user thereby also providing a much quieter environment than is provided in prior art
vertical configurations. Furthermore, Larsen's apparatus also allows for greater control
over the air flow permitting a generally even, uniform flow to be generated. Lastly, the
horizontal lead-in section of Larsen avoids the problems associated with the extensive
excavation required for the entirely vertically oriented tunnels of the prior art.
The appellants' arguments (brief, pp. 9-10; reply brief, pp. 2-3) regarding claims 1
and 4 are not persuasive for the reasons that follow. First, the applied prior art, not the
use of impermissible hindsight5, is suggestive of the claimed subject matter as set forth
4 The test for obviousness is what the combined teachings of the references would have
suggested to one of ordinary skill in the art. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089, 1091
(Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
5 The use of hindsight knowledge derived from the appellants' own disclosure to support an
obviousness rejection under 35 U.S.C. § 103 is 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).
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