Appeal No. 2004-0567
Serial No. 09/628,704
collecting dust. The examiner has not explained why the
references themselves would have led one of ordinary skill in the
art to modify Pässler’s scraping/water absorbing cleaning cloth
such that it can function as a tack cloth for collecting dust.
Nor has the examiner provided evidence that it was known
generally in the art to modify water absorbent scraping and
cleaning cloths such as that of Pässler such that they can
function as tack cloths.
Thus, the record indicates that the motivation relied upon
by the examiner for modifying Pässler’s cleaning cloth in the
manner proposed by the examiner comes from the appellants’
specification rather than coming from the applied prior art.
Hence, the record indicates that the examiner used impermissible
hindsight in rejecting the appellants’ claims. See W.L. Gore &
Associates v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303,
312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984); In re
Rothermel, 276 F.2d 393, 396, 125 USPQ 328, 331 (CCPA 1960).
Accordingly, we reverse the examiner’s rejection.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1-3, 5, 6
and 8 over Pässler in view of Schoonen, claims 4, 9 and 10 over
6
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