Appeal No. 2005-1411 Page 6
Application No. 10/340,772
1091 (Fed. Cir. 1991); In re Wood, 582 F.2d 638, 642, 199 USPQ 137, 140 (CCPA
1978)), is sustained.
The only argument presented by the appellant as to why claim 4 is not
unpatentable over Ewald in view of McCloughan is that McCloughan does not cure the
perceived deficiencies of Ewald noted above. Having found no such deficiencies, it
follows that the rejection of claim 4 is also sustained.
The rejection of claim 2 as being unpatentable over Ewald, however, is not
sustained. Ewald discloses that the dimensions of the walls are controlled merely by
the length and width of the flexible sheet from which are they are formed (column 1,
lines 54-56) and provides no teaching or suggestion to form the tank of at least two
sheets sealably joined to each other along their long edges as called for in claim 2.
Even when obviousness is based on a single prior art reference, there must be a
showing of a suggestion or motivation to modify the teachings of that reference. See In
re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1316-17 (Fed. Cir. 2000).
Espedalen discloses a device for counting fish which includes a vessel 1 with a
pipe 2 attached thereto and teaches that, as fish will always go against the current, the
smolt 17 present in the vessel 1 will make for inlet 15 to pipe 2 and thus swim against
the current inside the pipe. According to Espedalen, this tendency is enhanced if the
vessel has a pale color inside and the inlet 15 to pipe 2 has a dark color (column 2, lines
44-48). We find nothing in this which would specifically suggest forming Ewald’s tank of
two outside sheets which are dark in color and at least one sheet between the outside
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