Appeal No. 1999-2100
Application No. 08/850,825
4, lines 64-67), such as gloves (Figure 19). As shown in
Figure 1, the material is multi-layered, and at the very least
comprises a layer of material (18) which is the type described
in the appellant’s claim 1 plus a layer of foam (14). It is
the examiner’s position that it would have been obvious to one
of ordinary skill in the art to replace the two layers of
plastic bubble-wrap material used in the Krippelz slipper with
a layer of the plastic material disclosed by Kolsky as one of
the elements in the cushioning material.
We do not agree. It is axiomatic that the mere fact that
the prior art structure could be modified does not make such a
modification obvious unless the prior art suggests the
desirability of doing so. See In re Gordon, 733 F.2d 900, 221
USPQ 1125 (Fed. Cir. 1984). In the present situation, we fail
to perceive any teaching, suggestion or incentive which would
have led one of ordinary skill in the art to make the
modification proposed by the examiner. The examiner has
concluded that such a change would provide “better support,
added cushioning and better energy absorption” than the
material used by Krippelz (Answer, page 4). However, from our
perspective, any advantages touted in Kolsky apply to the
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