Appeal No. 96-3648
Application No. 07/685,563
the side view, as shown in Figure 2. The game board of
Ockenfels, albeit crescent-shaped, describes no specific
discernible thickness. The examiner does not dispute that
Ockenfels shows only a single view of the game board but argues
that “it has long been accepted in the art to describe the
thickness of a game board as being conventional with no visual
disclosure” [principal answer-page 4]. The examiner also employs
a dictionary definition of “board” to contend that it means a
sheet of relatively thin material.
We do not gainsay that a game board usually has a relatively
thin “thickness” and that most “conventional” game boards may
well be relatively thin. However, the fact that most game boards
are relatively thin does not lead to the conclusion that all game
boards are inherently so. The examiner does not, and cannot,
claim that all game boards are inherently relatively thin.
Accordingly, while it may be that Ockenfels’ game board is
relatively thin, there is no certainty that it is. That lack of
certainty can only lead to a conclusion that Ockenfels’ crescent-
shaped game board anticipates the instant claimed design under
35 U.S.C. ' 102 if we engage in unwarranted speculation derived
from a knowledge of appellant’s invention. This, of course, is
improper in an analysis of novelty under 35 U.S.C. ' 102.
Since the claimed design is not described in the single
3
Page: Previous 1 2 3 4 5 Next
Last modified: November 3, 2007