Appeal No. 95-1971
Application No. 08/126,130
lead, antimony, bismuth, cadmium and indium, and
their alloys are well recognized as having a
relatively high specific gravity and a low melting
point; choosing a metal not containing lead from the
group mentioned above, due to their physical
properties, can make the fishing device of GB more
sinkable (due to their specific gravity) and more
easier [sic] for its manufacturing or duplication
process (due to their low melting point).
Therefore, it would have been obvious to one of
ordinary skill in the art to choose bismuth or
bismuth alloys to form the non-lead fishing device
in GB to prevent lead poisoning. [Answer, page 3.]
In support of this position the examiner observes that Jukes
on page 1 states that the materials used in the non-toxic
fishing weight may be a) brass, b) stainless steel, c)
tungsten, copper, nickel, d) nickel, e) nickel silver, f)
steel, g) zinc and h) any other non-lead based material.
We will not support the examiner's rejection. In
rejecting claims under 35 U.S.C. § 103 the examiner bears the
initial burden of presenting a prima facie case of
obviousness. In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d
1955, 1956 (Fed. Cir. 1993); In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that
burden is met does the burden of coming forward with evidence
or argument shift to the applicant. Id. If the examiner
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