Appeal No. 2001-1875
Application No. 09/193,257
so different and have such different basic premises, that it
would not have been obvious to one of ordinary skill in the
art at the time of appellants' invention to combine those card
games in the manner urged by the examiner. Like appellants,
it is our view that the examiner is using the hindsight
benefit of appellants' own disclosure to combine these
seemingly unrelated poker-type card games in an attempt to
reconstruct appellants' claimed subject matter.
Since we have determined that the teachings and
suggestions found in Wood considered together with those of
Scarne's "Pokino" game would not have made the subject matter
as a whole of either of claims 1 or 7 on appeal obvious to one
of ordinary skill in the art at the time of appellants'
invention, we must refuse to sustain the examiner's rejection
of those claims under 35 U.S.C. § 103(a). It follows that the
examiner's rejection of dependent claims 4, 5, 9 and 12 under
35 U.S.C. § 103(a) based on Wood in view of Scarne also will
not be sustained.
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