Appeal No. 1998-2019 Page 7
Application No. 08/398,752
flexible body" (final rejection, page 2). On page 4 of the answer, the examiner states that it
would have been obvious to substitute bristle members for the solid body of Shopbell in
view of the teachings of Graw, "since such would be seen to reduce the possibility of injury to
a player impacting the marker."
While it is true that both Shopbell and Graw are directed to flexible markers which will
be easily seen and capable of flexing when hit, we also note that Shopbell is concerned with
providing a marker which will not be blown into the field of play and which is absolutely
harmless to players coming in contact therewith. Therefore, the appellant's arguments on page
11 of the brief are particularly well taken. Specifically, as pointed out by the appellant,
replacement of the solid body of Shopbell with bristles, which can be deflected by wind and
which could pass through face masks and clothing of players causing players to be injured,
appears to be contrary to the stated objectives of Shopbell. Thus, even if substitution of bristles
for the pliable, rubber-like post of Shopbell were to render the Shopbell marker simpler and
less expensive to construct, as suggested by the examiner, one of ordinary skill in the art5
having read the disclosure and objectives of Shopbell would not have considered such a
5The examiner has not adduced any evidence that this is, in fact, the case.
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