Appeal No. 2004-0350
Application No. 09/570,507
attach the horizontally extending legs to the ladder so as to
permit the perpendicular to parallel pivoting movement required
by independent claim 15. While Schmidt may show a coupler which
pivotally attaches a horizontal leg to a vertical tubular member
(e.g., see elements 39, 17 and 19 in Figure 1), this coupler is
completely different from and not substitutable for the coupler
which attaches Hailer’s horizontal leg 21 to the vertical frame
sections 19 of his target frame 14.
Viewed from this perspective, it seems clear that the
rejection under review is based upon impermissible hindsight
wherein that which is taught only by the inventor is used against
its teacher. 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). We cannot sustain, therefore, the Examiner’s § 103
rejection of claims 15 and 16 as being unpatentable over Kraushaar
in view of Hailer and further in view of Schmidt.
The decision of the Examiner is affirmed-in-part.
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