Appeal No. 2001-1225 Page 6
Application No. 09/019,693
104). With regard to this, the appellant argues that “a mallet having a flattened contact
surface cannot be construed to correspond to a bowling pin shaped paddle” (Paper No.
14, page 5). However, this argument is not commensurate with the scope of claim 1,
which does not require the bowling pin shape, and therefore, with regard to claim 1, it fails
at the outset (see In re Self, 671 F.2d 1344, 213 USPQ 1 (CCPA 1982)).
Insofar as the requirements of claim 1 are concerned, Seede fails to disclose or
teach (1) that the playing surface be inclined, and (2) that there be a plurality of balls.
Breslow discloses a competitive skill game comprising a walled playing surface upon
which players located at two playing stations separated by a barrier cause a ball to move
by striking it with a block-like implement. The playing surface is inclined upwardly from the
playing stations, but the reference is silent as to the reason for this. However, it is our view
that one of ordinary skill in the art would have found it obvious to incline the playing surface
of Seede in the same fashion for the self-evident advantages thereof which would have
been known by the artisan, such as increasing the speed of the ball in return from the upper
end of the playing surface and insuring that it will roll back to the playing stations by gravity
so that the game is continuous. We note here that skill is presumed on the part of the
artisan, rather than the lack thereof (see In re Sovish, 769 F.2d 738, 743, 226 USPQ 771,
774 (Fed. Cir. 1985)).
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