Appeal No. 1997-0011
Application No. 08/162,508
combine the relevant teachings of Greenawalt and Guillet to provide an arch support which
also has foot deodorizing properties. However, the examiner has provided no factual
evidence in this record showing the use of any prior art arch support which has a foot
deodorizing property.
Clearly, as appellants have argued in their brief, the examiner has pointed to no
teachings in the relied upon references which would have motivated or suggested to one of
ordinary skill in this art, the impregnating of the underside first pad (31) of Greenawalt with the
"antiseptic deodorizing product" of Guillet. The mere fact that the prior art could be modified
or combined as proposed by the examiner does not render the resultant combination claimed
herein obvious unless the prior art suggest the desirability of that combination. In re Fritch,
972 F.2d 1260, 1266, 23 USPQ2d, 1780, 1783 (Fed. Cir. 1992). Moreover, the examiner
must persuasively explain why the prior art would have suggested to one of ordinary skill in the
art, the desirability of that modification. Here, the examiner has failed to provide a persuasive
explanation of why one would have modified Greenawalt's arch support in the manner
proposed by the examiner.
Appellants also argue, and we agree, that the combination of Greenawalt and Guillet
fail to teach the use of a "patch containing fragrance" as required by the appealed claims.
As appellants point out, as used by them, the term "fragrance" is one which is limited to
materials such as perfumes which mask disagreeable odors, and which do not "antiseptically
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