Appeal No. 2004-1463
Application 09/401,221
cannot happen in Brendel. Therefore, the examiner’s analysis in
support of the combination of Brendel with Leighton is not based
on anything within the teachings of these references. The
examiner, therefore, is simply trying to reconstruct the claimed
invention in hindsight.
In summary, the examiner’s rejection of the claims on
appeal is not supported on the record before us. Therefore, the
decision of the examiner rejecting claims 1-6 is reversed.
REVERSED
JERRY SMITH )
Administrative Patent Judge )
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)
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JOSEPH F. RUGGIERO ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
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LANCE LEONARD BARRY )
Administrative Patent Judge )
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