Appeal No. 2002-1900
Application 09/728,901
modification. Thus, although the appellant’s invention is a
relatively simple and straightforward device, the examiner’s
reference evidence does not justify a conclusion that the
differences between the subject matter set forth in claim 1 and
the prior art are such that the subject matter as a whole would
have been obvious at the time the invention was made to a person
having ordinary skill in the art.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 1, and dependent claims 2 and 4
through 7, as being unpatentable over Cummings in view of
Burrows.
Since Griffin’s disclosure of a phosphorescent, glow in the
dark ball does not cure the shortcomings of the Cummings-Burrows
combination relative to parent claim 1, we also shall not sustain
the standing 35 U.S.C. § 103(a) rejection of dependent claim 3 as
being unpatentable over Cummings in view of Burrows and Griffin.
SUMMARY
The decision of the examiner to reject claims 1 through 7 is
reversed.
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