Appeal No. 2004-0440 Page 6
Application No. 10/083,171
not require a three position control circuit or switch. Specifically, Freidel’s vehicle
vaporizer comprises a tray 12 for holding the pad impregnated with the vaporizable
substance which is slidable between a “low” vapor output position further from the
heating resistor 62 and a “high” vapor output position closer to the heating resistor.
In short, the combined teachings of Stein, Thaler and Freidel are insufficient to
suggest the subject matter of claims 1 and 5. From our perspective, the only
suggestion for putting the selected pieces from the references together in the manner
proposed by the examiner is found in the luxury of hindsight accorded one who first
viewed the appellants' disclosure. This, of course, is not a proper basis for a rejection.
See In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992). It
follows that we cannot sustain the rejection of independent claims 1 and 5 or claims 2-
4, 6 and 7 depending therefrom.
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