Appeal No. 97-0933
Application No. 08/200,118
perceive any teaching, suggestion or incentive in either
Slamin or Elloy which would have led one of ordinary skill in
the art to modify the Slamin device by replacing the angled
bolt stem with an offset one. In fact, to do so would destroy
the very essence of the Slamin invention, which we regard as a
disincentive for such modification. The examiner states that
Elloy teaches it is well known “to effect an off-set . .
rather than an angular displacement for purposes of
adjustability” (Paper No. 7, page 4). However, the examiner
did not annotate to the patent for support for this
conclusion, nor can we find such a teaching there. From our
perspective, therefore, suggestion for the proposed
modification of Slamin is found only in the luxury of the
hindsight accorded one who first viewed the appellants’
disclosure. This, of course, is not a proper basis for a
rejection. See In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d
1780, 1784 (Fed. Cir. 1992).
The rejection of claim 2 is not sustained.
Nor will we sustain the rejection of claim 3, which is
based upon Slamin and Bolesky, the latter of which was cited
for disclosing a knee prosthesis having a flared inferior end
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