Appeal No. 2002-1900
Application 09/728,901
joining the conduits to one another and to the blocks (see, for
example, Figure 4) such that the conduits form a continuous
passageway for a ball/marble M. Figure 5, which is focused on by
the examiner (see page 2 in the answer), shows U-shaped
passageway section composed of a pair of curved conduits 26
joined by a coupling 28.
In proposing to combine Cummings and Burrows to reject the
appealed claims, the examiner concludes that it would have been
obvious to one of ordinary skill in the art “to have employed the
ends of Burrows [presumably as shown in Figure 5] with the
apparatus of Cummings in order to increase the skill level of the
player as the game is played” (answer, page 3).
Even if Burrows is assumed to analogous art (the appellant
argues that it is not), however, there is nothing in its
depiction of coupled conduit sections (Figure 5) intended to form
part of a larger conduit system (Figure 4) which would have
suggested modifying the Cummings device in the manner proposed
for any discernable reason, let alone the unfounded skill level
rationale advanced by the examiner. Indeed, Cummings’ stated
intention to provide a catching surface having a shape adapted to
receive a ball and smoothly and progressively change its
direction seemingly would have taught away from this
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