Appeal No. 2005-1411 Page 7
Application No. 10/340,772
sheets which is light in color, as called for in claim 3. From our perspective, the only
suggestion for putting the selected pieces from the references together in the manner
proposed by the examiner is found in the luxury of hindsight accorded one who first
viewed the appellants' disclosure. This, of course, is not a proper basis for a rejection.
See In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992). The
rejection of claim 3 as being unpatentable over Ewald in view of Espedalen is not
sustained.
The rejection of claim 5 as being unpatentable over Ewald in view of McCloughan
is also not sustained. McCloughan’s screens 71 are not “bulkheads” as that term would
be understood by one of ordinary skill in the art4 and thus would not have suggested the
provision of movable bulkheads on Ewald’s tank.
CONCLUSION
To summarize, the decision of the examiner to reject claims 1-6 under 35 U.S.C.
§ 103 is affirmed as to claims 1, 4 and 6 and reversed as to claims 2, 3 and 5.
4 “A wall or embankment for holding back earth, fire, water, etc.” (Webster’s New World
Dictionary, Second College Edition (Simon & Schuster, Inc. 1984).
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007