Appeal No. 1999-0256 Page 7
Application No. 08/828,616
reference concerning how to achieve low viscosity, much less
that such be accomplished by the addition of means for
rendering the insole material thixotropic. Bradley states that
the thixotropic agent be added “where necessary to preserve
viscosity,” and this need has not been established in Lyden,
nor is it apparent. Moreover, the above-quoted statement in
Lyden concerning additives is in regard to the regulation of
the setting time of the insole material, and not the viscosity,
so it provides no basis for incorporating the thixotropic agent
discussed in Bradley. Finally, it is speculative to assume
that the addition of a thixotropic agent to the insole material
of Lyden would not have an adverse effect upon the method of
operation, particularly in view of the relatively short cure
time, which is a key element thereof. This uncertainty would
operate as a disincentive to the artisan to do so, in our view.
The mere fact that the prior art could be modified does
not make such a modification obvious absent suggestion of the
desirability of doing so. See In re Gordon, 733 F.2d 900, 902,
221 USPQ 1125, 1127 (Fed. Cir. 1984). In our opinion, the only
suggestion for adding means for rendering the Lyden insole
material thixotropic is found in the luxury of the hindsight
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