Appeal No. 2002-0726 Page 5
Application No. 08/606,762
downwardly through the funnel into the truncated cone, where they become adhered to
the floor.
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). Carle has a
light to attract insects into the inlet of the trap to the point where they can be drawn into
the trap by the suction fan. This being the case, we fail to perceive any teaching,
suggestion or incentive which would have led one of ordinary skill in the art to provide
the Carle trap with a second insect lure located in the cartridge, for it would seem to
have no purpose; by the time insects reach the Carle cartridge they already have been
lured into the trap and have been caused to enter the cartridge by the suction of the
fan. We are not persuaded otherwise by the examiner’s reasoning that more insects
would have been attracted to the trap if the proposed modification were made,
considering that no evidence has been provided in support of this conclusion.
It therefore is our opinion that the combined teachings of Carle and Rutherford
fail to establish a prima facie case of obviousness with regard to the subject matter
recited in independent claims 1, 10, 18 and 23, and we will not sustain the rejection of
these claims or of dependent claims 2, 4-6, 8, 11, 19, 24 and 25..
CONCLUSION
The rejection is not sustained.
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