Appeal No. 95-2990
Application 08/147,907
The mere fact that the prior art may be modified in
the manner suggested by the Examiner does not make the
modification obvious unless the prior art suggested the
desirability of the modification. In re Fritch, 972 F.2d
1260, 1266 n.14, 23 USPQ2d 1780, 1783-84 n.14 (Fed. Cir.
1992). In the present case, the prior art suggests the
desirability of the modification.
Chute suggests using color-coded bells for playing a
sequence of notes because such bells are easy to play and
easily adapted. Column 1, lines 17-42. Thus, the prior art
as a whole suggested using color-coded bells as the “other
musical instrument” contemplated by Searing’s card method.
Searing at column 8, lines 50-61. Replacing Searing’s symbols
with colors that match color-coded bells as suggested by Chute
or the admitted prior art results in the subject matter of
Claim 25.
The affidavits of Carlington and Winston do not tip
the balance in favor of patentability. Winston speaks of
dramatic results but does not say whether they were
unexpected. Carlington says that the claimed teaching system
is not commercially available and that she would buy it if it
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