Appeal No. 2005-1042
Application No. 09/759,543
of construction for the level of Goss. The examiner’s contrary
viewpoint is unquestionably based upon impermissible hindsight.
In light of the foregoing, the section 103 rejection of
claim 3 over Goss in view of Richardson cannot be sustained.1
Regarding the rejection of claim 1 over Goss in view of
Patten, we share the examiner’s conclusion that it would have
been obvious for one having ordinary skill in the art to
manufacture Goss’s level housing from foamed metals of the type
taught by Patten. In this way, the solid housing material shown
in Figure 2 of Goss would have been replaced by a foamed metal
material of the type and having the benefits (e.g., lighter
weight or lesser density) taught by Patten, for example, at lines
17-39 in column 1. Contrary to the appellants’ belief and
argument, an artisan would have been motivated to so combine
these reference teachings in order to obtain the aforementioned
benefits.
1
1 For unknown reasons, the examiner has applied this
rejection against dependent claim 3 only and thus has made no
express rejection or obviousness conclusion with respect to
parent independent claim 1. Because a dependent claim includes
all the limitations of the parent claim (see 37 CFR § 1.75(c)),
this practice is wholly inappropriate. We advise the examiner
and her two SPE conferees to discontinue such practice
immediately.
4
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