Appeal No. 2002-1407
Application 09/157,995
fact, it would appear to us that any such modification of the
gaming device of Bally would be antithetical to the entire
teachings and suggestions found in the Bally advertisement.
Since we have determined that the teachings and suggestions
found collectively in Bally and Marsh would not have made the
subject matter as a whole of independent claims 1, 14 and 17 on
appeal obvious to one of ordinary skill in the art at the time of
appellant’s 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 through 13,
15, 16 and 18 through 20 under 35 U.S.C. § 103(a) on that same
basis will likewise not be sustained.
We have additionally reviewed the examiner’s rejection of
claims 2 and 3 under 35 U.S.C. § 103(a) based on Bally and
Pickardt. However, as pointed out by appellant on page 19 of the
brief, claims 2 and 3 depend from independent claim 1 and
likewise include the limitation regarding at least one
opportunity to change “less than all of said winnings” of a
primary game through play on a secondary gaming unit. While the
examiner’s rejection attempts to supply a deficiency in Bally by
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