Appeal No. 1998-1029
Application 08/361,590
face. Compare Figures 1 and 4. Due to the elasticity of the
material, when the distorting force is removed, Exline’s
figure returns to its original undistorted position.
In rejecting the appealed claims on the combined
teachings of Sauer and Exline, the examiner has taken the
position that it would have been obvious in view of Exline to
make the Sauer device of an elastic material “for allowing the
structure to automatically return to its undistorted
condition” (answer, page 4). We do not agree. Sauer’s
express teaching that the device thereof should be constructed
in a manner that permits it to retain a selected distorted
position presents a disincentive to the modification proposed
by the examiner. Because the modification proposed for Sauer
would render it unsuitable for it’s intended purpose of
remaining in a selected distorted position until another force
is applied, it cannot be said that the proposed modification
would have been obvious to one of ordinary skill in the art.
Ex parte Rosenfeld, 130 USPQ 113, 115 (Bd. App. 1961).
The examiner also contends that it would have been
obvious “to provide an opening at the mouth of the Exline head
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