Appeal No. 2004-0946
Application No. 09/965,150
member carrying a primary shower head, and wherein the first and
second water conduits extend downwardly in different amounts and
each carries a water spray valve mechanism and a separate on-off
lever member at the end thereof, as specifically set forth in
claim 10 on appeal. As for the examiner's proposed combination
of Gellmann and Holbrook, and the further modification thereof to
arrive at the claimed subject matter, we are of the view that the
examiner's position represents a clear case of impermissible
hindsight reconstruction of the claimed invention based on
appellant's own teachings. In that regard, we note, as our court
of review indicated in In re Fritch, 972 F.2d 1260, 1266,
23 USPQ2d 1780, 1784 (Fed. Cir. 1992), that it is impermissible
for the examiner to use the claimed invention as an instruction
manual or "template" in attempting to piece together isolated
disclosures and teachings of the prior art so that the claimed
invention is rendered obvious.
Since we have determined that the teachings and suggestions
found in Gellmann and Holbrook would not have made the subject
matter as a whole of independent claim 10 on appeal obvious to
one of ordinary skill in the art at the time of appellant's
invention, we must refuse to sustain the examiner's rejection of
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