Appeal 2007-3844
Application 10/832,881
trail … beyond said downstream edge” (col. 3, ll. 16-18). Each of Fleischli
and Seah are directed to disparate devices that do not involve the type of
mixing device that Lloyd teaches the provision of a boundary wall edge lip
and bead would benefit.
Here, the Examiner’s “deeming” that one of ordinary skill in the art
would have been motivated or led to add the boundary wall lip or bead of
Lloyd to the vanes of Fleischli or the packing plates of Seah so that mixing
is enhanced in Fleischli or Seah is not supported by a fair reading of the
record evidence as it would have been understood by one of ordinary skill in
the art as Appellants maintain in the Briefs.
In other words, the Examiner’s rationale for the rejection falls short of
identifying “a reason that would have prompted a person of ordinary skill in
the art to combine the elements” in the manner claimed. KSR Int’l Co. v.
Teleflex, Inc., 127 S. Ct. 1727, 1739, 82 USPQ2d 1385, 1396 (2007). In this
regard, rejections based on § 103(a) must rest on a factual basis with these
facts being interpreted without hindsight reconstruction of the invention
from the prior art. See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
177-78 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
CONCLUSION
The decision of the Examiner to reject claims 1, 2, and 9-24 under
35 U.S.C. § 103(a) as being unpatentable over Fleischli in view of Lloyd;
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