Appeal No. 2005-0845
Application 10/249,204
for in claim 29. However, there is no disclosure in Davis that
Davis rises into the ambient air in response to the pull on line
104 in combination with the drag force of the water on the body.
The examiner merely states that it does so with reference to
Figures 1-8 and columns 3 and 4. We find no specific mention of
this characteristic or capability of Davis in the disclosure
pointed out by the examiner. Indeed, in the Figures pointed to,
when they do show water, they show the lure of Davis entirely
submerged. If the examiner’s finding is based on inherency, the
examiner has failed to provide a reasonable explanation as to why
oscillating and submerging and rising is necessarily present in
Davis. Accordingly, it is our determination that the examiner
has not shown this function of the claimed subject matter is
present in Davis by a preponderance of the evidence. Both
independent claims 27 and 29 are directed to this feature.
Consequently, we reverse the rejections of these claims and the
claims dependent thereon.
Turning to claim 21, we are in agreement with appellant that
Davis cannot be said to have a longitudinal axis through said
front opening, said interior channel, and said rear opening of
said elongate body, with said rear opening also having a pattern
of apertures. While we understand the examiner’s argument on
page 10 of the answer, we note that the inferred rear opening of
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