Appeal No. 2000-1630
Application No. 09/085,540
In the present case, the examiner has failed to advance any
factual basis to support the conclusion that it would have been
obvious to one of ordinary skill in the art to modify the Figure
2 cistern of Kennon by dividing it along a horizontal plane
through the widest part of the cistern to produce a base section
and a top section in accordance with the base and top sections
called for in claim 12. The mere fact that the prior art could
be so modified would not have made the modification obvious
unless the prior art suggested the desirability of the
modification (see In re Gordon, 733 F.2d 900, 902, 221 USPQ
1125, 1127 (Fed. Cir. 1984)). Kennon contains no such
suggestion. Rather, Kennon teaches that when the cistern is to
be made of plural sections, the sections should be generally
cylindrical in shape as shown in Figure 1.
Accordingly, we cannot sustain the standing 35 U.S.C. § 103
rejection of claim 6 as being unpatentable over Kennon.
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