Appeal No. 97-2466 Page 11
Application No. 08/461,943
Second, the appellants argue, “the modification of the
[sic] Pyster to include the total teachings of Cordy as
proposed by the Examiner is the result of application of
impermissible hindsight ....” (Appeal Br. at 16.) In
response, the examiner observes, “Pyster describes the state
of the art in a compiler overview and it is very similar to
the prior art description given by the applicants. Cordy's
compile-time detection algorithms is [sic] designed for use
with compilers ....” (Examiner’s Answer at 11.)
We find that one having ordinary skill in the art would
have been motivated to combine Cordy with Pyster. Any
judgment on obviousness is necessarily a reconstruction based
on hindsight. If the judgment takes into account only
knowledge that was within the level of ordinary skill at the
time an invention was made and does not include knowledge
gleaned only from an appellant’s disclosure such a
reconstruction is proper. In re McLaughlin, 443 F.2d 1392,
1395, 170 USPQ 209, 212 (CCPA 1971); Radix Corp. v. Samuels,
13 USPQ2d 1689, 1693 (D.D.C. 1989). Here, the examiner
concludes that one of ordinary skill in the art would have
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