Appeal No. 2006-1227 Παγε 5
Application No. 09/960,606
Przytulla and Hammes for disclosing a cylindrical side wall and a one-piece integrally
molded structure molded in a single blow molding operation. The examiner concludes:
It would have been obvious to modify the shape of the side wall to be
cylindrical as a matter of design choice in sacrificing the packing efficiency
of rectangular in cross section side walls for cylindrical side walls which
have less corner surfaces on their interior allowing faster and easier
cleaning. It would have been obvious to blow mold the structure into one-
piece in a single operation as a matter of design choice to take advantage
of a design requiring no assembly of separate parts and a design which
can be manufactured in a single operation eliminating multiple stages of
manufacturing requiring storage, part inventories and multiple machines to
perform each stage of manufacturing [final rejection at page 4].
We note that when it is necessary to select elements of various teachings in
order to form the claimed invention, we ascertain whether there is any suggestion or
motivation in the prior art to make the selection made by the appellants. Obviousness
cannot be established by combining the teachings of the prior art to produce the
claimed invention, absent some teaching, suggestion or incentive supporting the
combination. The extent to which such suggestion must be explicit in, or may be fairly
inferred from, the references, is decided on the facts of each case, in light of the prior
art and its relationship to the appellants' invention. As in all determinations under 35
U.S.C. § 103, the decision maker must bring judgment to bear. It is impermissible,
however, simply to engage in a hindsight reconstruction of the claimed invention, using
the appellants' structure as a template and selecting elements from references to fill the
gaps. The references themselves must provide some teaching whereby the appellants'
combination would have been obvious. In re Gorman, 933 F.2d 982, 986, 18 USPQ2d
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