Appeal No. 2005-0288 Page 11
Application No. 10/075,786
Third, there is motivation, without the use of impermissible hindsight5, for a
person having ordinary skill in the art to have combined the teachings of Andrieu and
Holland so as to arrive at the claimed invention. Holland's clear teaching that a fabric
made of commercially available Spectra® fibers has minimal weight, increased abrasion
resistance, tear strength, and cut and stab resistance which overcomes the
disadvantages of polyester fabric covers provides, in our opinion, sufficient motivation
for an artisan to have modified Andrieu's protective cover by using Spectra® fibers, thus
arriving at the claimed invention. Additionally, we note that Holland also teaches that
his improved fabric can be used for uses other than as a cargo cover where a
lightweight, tear-resistant, abrasion resistant, stab-and-cut resistant, chemical resistant,
and cold resistant fabric is required.
Lastly, Andrieu's invention does not teach away from the claimed invention. As
to the specific question of "teaching away," our reviewing court in In re Gurley, 27 F.3d
551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994) stated "a reference will teach away if
it suggests that the line of development flowing from the reference's disclosure is
unlikely to be productive of the result sought by the applicant." In this case, Andrieu
5 The use of hindsight knowledge derived from the appellants' own disclosure to
support an obviousness rejection under 35 U.S.C. § 103 is impermissible. See, for
example, W. L. Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220
USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984).
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