Appeal No. 1997-2683
Application No. 08/590,016
While we do not totally disagree with the Examiner’s apparent
observation that Appellants’ device would be difficult to
utilize for anyone not of a standard size and body shape, this
fact alone does not, in our view, support the Examiner’s
conclusion of obviousness. The mere fact that the prior art
may be modified in the manner suggested by the Examiner does
not make the modification obvious unless the prior art
suggested the desirability of the modification. In re Fritch,
972 F. 2d 1260, 1266, 23 USPQ2d 1780, 1783-84 (Fed. Cir.
1992). In our opinion, although Shutt does suggest minor
adjustment of his device to accommodate the particular contour
of different toilet seats (Shutt, column 2, lines 55-57), the
complete redesign of Shutt that would be required to arrive at
the claimed invention would be possible only with improper
hindsight reconstruction of Appellants’ device. Accordingly,
since the Examiner has failed to establish a prima facie case
of obviousness, we do not sustain the 35 U.S.C. § 103
rejection of appealed claims 1 and 2.
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