Appeal No. 1999-0069
Application No. 08/388,741
“rearward traveling undulating movements . . . which propel
said elastomeric body though the water,” as is recited in
claim 1.
All three of the secondary references are directed to
devices that utilize the oscillating motion of a member for
propulsion. In the Eastep arrangement, an oscillating
propeller is comprised of a plurality of longitudinally
connected rigid elements that are biased at their hinge points
so that they move back and forth as is shown in Figure 6.
Wood and Kindred disclose flexible propelling members
comprising a single elongated flexible element. However, the
mere fact that the prior art structure could be modified does
not make such a modification obvious unless the prior art
suggests the desirability of doing so. See In re Gordon, 733
F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). Because
the Glover device is not intended to propel itself through the
water, we fail to perceive any teaching, suggestion or
incentive which would have led one of ordinary skill in the
art to modify the toy disclosed therein by providing it with a
propelling mechanism, other than the hindsight accorded one
who first viewed the appellants’ disclosure. This, of course,
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