Appeal No. 1999-0069
Application No. 08/388,741
It is our view that a prima facie case of obviousness has
not been established with regard to the subject matter recited
in any of the claims, and we therefore will not sustain either
of the rejections. Our reasoning follows.
Basic to the appellants’ invention is that the undulating
movement provided to the swimming creature to which the
invention is directed causes the creature to propel itself
through the water in a manner that simulates the movement of a
live fish. As manifested in independent claim 1, the
invention comprises a unitary elongate body of elastomeric
material having a center of mass, a rearward portion rearward2
of the center of mass and a forward portion forward of the
center of mass, with the rearward portion being tapered
rearwardly so that it has a greater cross-sectional thickness
toward the center of mass, and means for imparting oscillating
rotational motion at a point forward of the center of mass
about an axis perpendicular to the frontal plane of the body
and lying in the median plane thereof. With regard to the
2In view of the common definition, and considered in the
context of the appellants’ disclosure, we interpret “mass” to
mean the weight of the material of which the body is formed.
See, for example, Merriam Webster’s Collegiate Dictionary,
Tenth Edition, 1996, page 715.
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