Appeal No. 2002-0267 Page 3
Application No. 09/440,496
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
At the outset, we wish to focus upon the appellants’ argument that Di Egidio and
Ball are non-analogous art and therefore cannot properly be used in the rejection (Brief,
pages 6 and 7). The test for analogous art is first whether the art is within the field of
the inventor's endeavor and, if not, whether it is reasonably pertinent to the problem
with which the inventor was involved. See In re Wood, 599 F.2d 1032, 1036, 202 USPQ
171, 174 (CCPA 1979). A reference is reasonably pertinent if, even though it may be in
a different field of endeavor, it logically would have commended itself to an inventor's
attention in considering his problem because of the matter with which it deals. See In re
Clay, 966 F.2d 656, 659, 23 USPQ2d 1058, 1061 (Fed. Cir. 1992).
Di Egidio is directed to a sports geography game in which tokens are placed in
openings in a map of the continental United States, based upon the location of cities
within the various states. Interestingly, the appellants also have characterized their
invention as a “game” (specification, page 5), and have stated on the preceding page
that it can be used to display “quarter-sized” objects, such as tokens, which are
distinguishable on a state by state basis. This would seem on its face to place
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