Appeal No. 2005-1023 Page 4
Application No. 09/963,734
The appellant argues that the applied prior art does not suggest the claimed
subject matter absent the use of hindsight knowledge derived from the appellant's own
disclosure.1 We agree.
All the claims under appeal require arranging a plurality of first aid packs in a
card catalogue/file cabinet-like array in particular order. Independent claims 1 and 10
require the packs to be arranged in the order of: a breathing first aid pack, a bleeding
first aid pack, a shock first aid pack, a head and spine first aid pack, a bone first aid
pack, a burn first aid pack, and then a bites and stings first aid pack. Independent claim
8 requires that the pack for the management of the most serious first aid situation be
placed in a front compartment of the first aid kit and arranging the remaining packs in an
order of descending seriousness in the first aid kit behind the pack for the management
of the most serious first aid situation. However, these limitations are not taught or
suggested by the applied prior art. To supply this omission in the teachings of the
applied prior art, the examiner made a determination (answer, pages 3-5) that these
differences would have been obvious to an artisan. However, this determination has
1The use of such hindsight knowledge to support an obviousness rejection under
35 U.S.C. § 103 is, of course, 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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