Appeal No. 2000-0105
Application No. 08/573,247
taken. Even if the spindle/coil 16, 17 combination of
Maruyama might be considered to be an electric motor, which we
doubt, it is not the drive motor which drives the impact
mechanism of the tool, as recited in the claims. The
examiner’s further position, that it would have been obvious
to substitute an electric motor for the air-powered motor of
the reference(s), is not supported by any evidence in the
record, but appears to be based upon improper hindsight
gleaned from appellants’ disclosure.
Cf. In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617
(Fed. Cir. 1999). Moreover, even if an electric drive motor
were substituted for the references’ air-powered motor, the
claimed subject matter would still not be taught or suggested
because the references disclose controlling the power to the
drive motor in response to the torque detected by separate
torque sensors (Anders col. 2,
line 67, to col. 3, line 2; Maruyama col. 4, line 59, to col.
5, line 35), rather than in response to any characteristic
variables of the drive motor per se, as recited in claims 23
to 25.
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