Appeal No. 2001-2656 Page 8
Application No. 09/208,514
Cunningham teaches dividing the pack into compartments by means of fabric webs or
partitions “made of the same durable material as the walls” of the pack and “sewed or
otherwise securely bonded to the front, rear and side walls of the pack” (column 2, lines
32-35), as is shown in Figure 4. Partition 27 is described as “acting as a tension
member to prevent spreading of the front and rear walls in the lower portion of the filled
pack (column 2, lines 67 and 68). The examiner considers the compartment bounded
by walls 26 and 27 in Cunningham to be the required “recess in a first surface of said
carrying bag.” Accepting this at face value, Cunningham fails to disclose “a material
covering said recess . . . [and] being expandable into an expanded configuration to
accommodate a portion of said article received in said recess and extending beyond
said first surface of said carrying bag,” as is required by claim 1.
The Platts reference is directed to a suitcase having at least portions made of
expandable material in order to allow it to stretch “in one or more directions
automatically as contents are added” (page 1, lines 35-37). As shown in Figures 2 and
4, stretchable material is used in the sidewalls.
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.6 We fail
to perceive any teaching, suggestion or incentive in either Cunningham or Platts which
would have led one of ordinary skill in the art to modify the Cunningham pack in the
6In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984).
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