Appeal No. 1997-0417
Application 08/265,548
with this reasoning and find that both of these assumptions about what would have been obvious involve
the use of impermissible hindsight.
While judgements on obviousness are in a sense necessarily a reconstruction based upon
hindsight reasoning, so long as they take into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made, and do not include knowledge gleaned only
from the applicants’ disclosure, such reconstruction is proper. See In re McLaughlin, 443 F.2d 1392,
1395, 170 USPQ 209, 212 (CCPA 1971). We find that the reasoning of the obviousness rejection in
the rejection took into account knowledge gleaned only from appellants’ disclosure. Specifically, one
would have to look to appellants’ disclosure for direction to use plural sensors stations corresponding
to plural conveyors and to generate and respond to corresponding flow rate signals for controlling
individual material flow rate. As stated by appellants at page 11 of their specification, using plural
sensor stations and conveyors allows the moisture content of virgin aggregate to be known more
accurately since the individual component materials (e.g., gravel, rock, and sand) are known. To
modify Adamski to achieve appellants’ claimed invention would have involved the application of
knowledge and motivation not clearly present in the applied prior art. See In re Sheckler, 438 F.2d
999, 1001, 168 USPQ 716, 717 (CCPA 1971).
While the examiner asserts that controlling flow rate using flow rate signals would have been
within the level of skill of the ordinary artisan, the applied prior art fails to show such. The problem of
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