Appeal No. 2002-0346 Page 5
Application No. 08/952,673
re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). We fail to
perceive any teaching, suggestion or incentive which would have led one of ordinary
skill in the art to modify the Hommen braking system in the manner proposed by the
examiner. In fact, we agree with the appellants for the reasons expressed in the Briefs
that Hommen teaches away from such a feature, in that the specification indicates that
the objective is always to apply the full emergency braking power, subject only to
mitigation by the load sensing device.3 This being the case, it appears to us that the
only suggestion to make the proposed modification is found in the luxury of the
hindsight afforded one who first viewed the appellants’ disclosure. This, of course, is
not a proper basis for a rejection under 35 U.S.C. § 103. In re Fritch, 972 F.2d 1260,
1264, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
CONCLUSION
3See, for example, column 3, lines 44-51.
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