Appeal No. 2004-2067 Page 4
Application No. 09/929,362
and a common junction element, and (3) a pole attached (claim 1) or attachable (claim
12) at a first end to said common junction element and at a second end contacting and
tensioning a flexible canopy. The examiner relies upon the triangular collapsible truss
structure of Talmadge’s Figure 7 embodiment for a suggestion to provide these features
found lacking in Warner.
Even assuming that Talmadge provides suggestion to modify Warner’s tent so as
to include only three perimeter frame members 16, corner joints 35 and corner posts 12
and three cables 26 to give the tent a triangular shape, we agree with appellant that the
resulting structure would be as illustrated by appellant on page 12 of the brief. To
connect the cables together at a common junction element and to connect a single
flying pole between said common junction and the canopy, as proposed by the
examiner, would not permit location of flying poles at multiple locations to thereby permit
a larger span of the tent and would eliminate the easy tensioning feature afforded by the
central cable 28, as taught by Warner on page 3. A person of ordinary skill in the art
would thus have been discouraged by the express teachings of Warner from connecting
the cables to a common junction element rather than to separate connection points on a
central cable to arrive at the invention recited in claims 1 and 12.3 Accordingly, we must
3 “A reference may be said to teach away when a person of ordinary skill, upon [examining] the
reference, would be discouraged from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1131 (Fed. Cir. 1994).
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