Appeal No. 98-1050
Application No. 08/558,163
throttle, and not a transmission throttle, but such a
requirement is not in the claim.
As for the implication in the appellant’s arguments that
the examiner has used hindsight reasoning in constructing the
rejections, we note that any judgment on obviousness is in a
sense necessarily a reconstruction based upon hindsight
reasoning, but so long as it takes into account only knowledge
which was within the level of ordinary skill at the time the
claimed invention was made, and does not include knowledge
gleaned only from the applicant's disclosure, such a
reconstruction is proper. See In re McLaughlin, 443 F.2d
1392, 1395, 170 USPQ 209, 212 (CCPA 1971). We believe that to
be the case here, for the reasons explained above.
SUMMARY
Both rejections are sustained.
The decision of the examiner is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under
37 CFR § 1.136(a).
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