Appeal No. 2000-2033
Application 08/331,851
Next, appellant raises the issue of a rejection based on
cited prior art that was never applied in a reexamination as was
the case in In re Portola Packaging, Inc, 110 F.3d 786, 42 USPQ2d
1295 (Fed. Cir. 1997). However, it is clear, that the result in
Portola was dictated by the narrow scope of reexamination
afforded the PTO by the statute. In the case of an application
for patent, the PTO has broad scope. The court explicitly
recognized in Portola the PTO’s goal of performing a thorough and
conscientious examination before allowing applications to be
patented. 110 F.3d at 791, 42 USPQ2d at 1300.
Turning to the rejections based on prior art, it is our
finding, that Kopp discloses a toy gun in the form of an elastic
lash made of an annular rubber band having a first loop joined to
the distal end of an elongated rod. When the lash is released,
it spontaneously contracts and may be used to strike "some object
such as a fly or an insect [sic]." Kopp releases the elastic
lash by way of a trigger made of a single piece of resilient
material 9. Thus, Kopp differs from the claimed subject matter
in having a resilient trigger 9 which does not include a latch or
a means pivotally joined adjacent to the latch for releasing the
lash.
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