Appeal No. 2004-2007 Page 5
Application No. 10/014,838
over which it is filled with liquid, nor is there a recognition in Carr of the problem to
which the appellant’s invention is directed.
Marcussen discloses a gauge for measuring the amount of cream in milk bottles.
At the time of the Marcussen invention (1924), milk was not homogenized, and
therefore the cream contained therein, which was of lesser density than the milk, would
collect in the uppermost portion of the bottle, above the level of the milk (page 1,
column 1). The portion of the disclosed bottle in which the cream collects is of varying
cross-sectional area, and Marcussen discloses a gauge having an edge corresponding
to the curvature of this portion of the bottle. With the zero mark of the gauge at the
level of the top of the filled portion of the bottle, the gauge scale indicates to the user
the percent of the volume of the bottle that is filled with cream. The spacing of the
scale varies as a function of the cross-sectional area of the bottle (Figure 1). However,
the scale extends downwardly over only the upper portion of the bottle, “which range
sufficiently serves for any grade of commercial milk that might be found upon the
market” (page 1, lines 85-87).
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.3 In the
present case, we fail to perceive any teaching, suggestion or incentive in either Carr or
Marcussen which would have led one of ordinary skill in the art to modify the Carr
3In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984).
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