Appeal No. 2005-1729 8
Application No. 09/921,762
then concludes, without further explanation, that it would have been obvious “to modify the
admitted prior art crate to provide a tighter fit with the drag rail of a like crate stacked
thereon.”
Like appellants (brief, pages 14-16), we find no reasonable suggestion or motivation in
the applied prior art for adding gussets like those seen in the bulk material container of
Wise to the stackable tray for cans seen in Apps. From our perspective, the examiner has
engaged in impermissible hindsight reconstruction by using appellants’ claimed invention
as a template to pick and choose among isolated disclosures and concepts in the applied
prior art and then attempted to piece those disparate disclosures/concepts together in an
effort to render appellants’ claimed invention obvious. This approach is impermissible, and
thus the examiner’s rejection of claims 1 through 6, 25 through 29, 32 through 38 and 40
through 43 under 35 U.S.C. § 103(a) as being unpatentable over the APA in view of Wise
will not be sustained.
Concerning the rejections under 35 U.S.C. § 103(a) of claims
8 and 31 based on Apps in view of Elvin-Jensen, claims 9, 11 and
45 through 47 as being unpatentable over Apps in view the APA, claims 12 through 15
based on Apps in view of Wise, and claims 34, 38 and 39 as being unpatentable over the
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