Appeal No. 1998-1647
Application 08/668,503
of one or both sides of a flattened, lay-flat bag (column 3,
lines 6-10). While Ferguson’s patch 8 approaches the edges of
the bag in its flattened lay-flat position, it is clear that
it does not in any sense cover an edge of the lay-flat bag.
Concerning Kuehne, the examiner does not contend, and it is
not apparent to us, that this reference makes up for the above
noted deficiency in Ferguson. Thus, we conclude that the
examiner has failed to advance any factual basis to support
his conclusion that it would have been obvious to one of
ordinary skill in the art to modify Ferguson in the manner
proposed. The mere fact that Ferguson’s patch could be
extended up to or past a side edge of the bag does not
suffice. See In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984) (the circumstance that the prior art
could
be modified to meet a claim would not have made the
modification obvious unless the prior art suggested the
desirability of the modification). Here, neither Ferguson nor
8
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