Appeal No. 2005-1472 Page 7
Application No. 09/750,984
time of the invention with a reasonable expectation of success in
so doing, it appears that the rejection before us is premised on
impermissible hindsight arrived at through a reading of
appellants’ specification including the portions thereof not
acknowledged as admitted prior art by appellants. See W.L. Gore
& Associates v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303,
312-13 (Fed. Cir. 1983); In re Rothermel, 276 F.2d 393, 396, 125
USPQ 328, 331 (CCPA 1960).
For the above reasons, we find that the examiner has not set
forth and appropriately developed a factual basis which is
sufficient to support a conclusion of obviousness of the
invention recited in any of appellants’ claims.
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