Appeal No. 97-1365
Application 08/295,
slidably mounted in the frame structure for lengthwise reciprocation along an upright
path and having upwardly facing abutment, the teachings do not result in a roll carrier
actuating means with a first and second cam means.
The examiner acknowledges that Imai does not show a ram position sensor
means mounted on the stationary frame and that there are no means urging the
member 39 upwardly relative to the stationary frame structure, just as there is no
structure for stopping upward movement of the member 39 in a raised position on the
stationary frame structure. This is because member 39 of Imai is mounted on the ram
and not on the stationary frame structure. This being the case, it is clear that the
examiner’s reconstruction of Imai is not based on any teaching from the Nordlof and
Imai patents taken as a whole, but is based on a hindsight reconstruction resulting from
the purview of appellant’s disclosure. It is clear that Imai’s member 39 cannot be
construed as a ram position sensor member. Therefore the only ram position sensor
member taught by the references is an electronic or electrical one wherein no cam
means is used. “Here the examiner relied on hindsight to arrive at the determination of
obviousness. It is presumed permissible to use the claimed invention as an instruction
manual or template to piece together the teachings of the prior so that the claimed
invention is rendered obvious.” In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780,
1784, (citing In re Gorman, 933 F.2d 982, 987, 18 USPQ2d 1885, 1888 (Fed. Cir.
1991)). As the Federal Circuit has previously stated “one cannot use hindsight
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