Appeal No. 2004-1922 Page 5
Application No. 09/760,567
slidable sleeve (15) surrounds the lower portion of the crutch, and operating in
conjunction with a pin (23) and a slot (12) having branches (13 and 14), allows the
retractable plug to be locked in the extended position or to be movable longitudinally
outwardly (page 1, column 2). There is no teaching in Schwarting that the spring
absorbs shocks applied to the crutch by impact with the walking surface, but only it
outwardly toward its extended position.
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. In re
Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). In the present
case, we fail to perceive any teaching, suggestion or incentive in either reference which
would have led one of ordinary skill in the art to provide the Allsop ski pole with the
rotatable sleeve deactivating arrangement disclosed in Schwarting, for to equip the
Allsop device with a mechanism that deactivates the shock absorbing means would
render it incapable of operating in the manner intended and solving the problem to
which it is directed, and would seem to provide no advantages. Moreover, Allsop
desires to prevent rotational movement between the grip and the ski pole (column 6,
lines 57-61), and if the Schwarting system were installed, this feature would be disabled
and the grip portion of the Allsop pole would have to be extensively reconstructed. In
our view, these factors would be disincentives for the artisan to make the examiner’s
proposed modification.
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