Appeal No. 2002-0234
Application No. 09/496,087
characterizes as "an equivalent pivotably mounted frame" (answer,
page 3) as taught by Smith or Ferris for the frame or cylinder
arrangement supporting the extendible wheel (8) on the forklift
truck of Granlind. However, in our opinion, the mere fact that
pivotable mounting frames for tag axle wheel assemblies on
concrete trucks or dump trucks like those in Smith or Ferris
existed in the prior art at the time of appellant's invention
provides no teaching, suggestion, motivation or incentive for the
examiner's proposed modification of the forklift mechanism of
Granlind. Moreover, we find no teaching or suggestion of a
"tractor" and forklift apparatus combination like that claimed by
appellant in any of the references applied by the examiner.
After reviewing the prior art relied upon, we are of the
opinion that the examiner has taken appellant's disclosure and
claims as a blueprint and used them to seek out and assemble
disparate elements from the prior art in an effort to arrive at
appellant's claimed subject matter. Thus, the examiner's
position in this appeal represents a clear case of impermissible
hindsight reconstruction of the claimed invention based upon
appellant's own teachings. In that regard, we note, as our court
of review indicated in In re Fritch, 972 F.2d 1260, 1264,
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