Appeal No. 2002-0346 Page 4
Application No. 08/952,673
Among the requirements recited in claim 1 is that the back-up braking system
have a source of back-up braking pressure “which varies in accordance with braking
demand as initiated by a driver” (emphasis added). The purpose of this is to allow the
driver to intervene to control the amount of back-up braking applied in the event of
failure of the primary braking system, subject to the regulating valve that senses axle
load and back-up braking pressure. While the Hommen braking system has some
features in common with the system of the appellants’ invention, the concept of a
driver-initiated input to the back-up braking system simply is not present therein,2 a fact
which is admitted by the examiner on page 4 of the Answer. However, the examiner
nevertheless takes the position that “[t]he use of foot actuated brake elements in
vehicle braking systems is well known in the art . . . and to have provided the driver with
a device that would have been capable of providing a varied braking request signal, so
as to provide the operator the ability to decelerate the vehicle at a desired rate in
accordance with the situation in hand” in the Hommen system would have been obvious
to one of ordinary skill in the art (Answer, page 4). We do not agree with this
conclusion.
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
2See, for example, column 1, lines 42-48; column 2, lines 47-50; column 3, lines 35-38, lines 44-
51; column 5, lines 20-26.
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