Appeal No. 2002-2188
Application No. 09/442,970
In responding to the arguments advanced on appeal by the
appellant, the examiner further explains that
[t]he examiner relies on Beard to show the state of the
art. The examiner contends that the method and device
as claimed by appellant are currently performed and
used many times a day throughout the world by golfers
and cites Beard (pp 21, 187) as a reference to the
general practice of divot repair. The examiner
contends that when a golfer creates a divot by swinging
a club, a molded divot repair body having all of the
characteristics claimed by appellant is created, being
molded by the swing of the club into the turf. This
turf will have the precise mix and quantity of soil,
sand, seed, colorant, fertilizer and whatever else the
greenskeeper has applied to that specific portion of
the golfcourse, for that specific portion of the
golfcourse; indeed, for that specific divot location.
When either the golfer or another retrieves this dry,
pre-measured, molded divot repair body and replaces
this divot in the divot hole and smashes it down with
her foot, the method of appellant is being
accomplished. In this way, Beard does in fact teach
the method and divot repair body of appellant
[examiner’s answer, Paper No. 11, pages 3 and 4].
Quite understandably, the appellant (see the main and reply
briefs, Paper Nos. 10 and 13) takes great umbrage at all of this.
The finding by the examiner that the subject matter set
forth in the appealed claims was in public use or on sale in this
country within the meaning of § 102(b) rests on a concoction of
the Beard reference, Official Notice and admissions in the
appellant’s specification regarding the state of the prior art.
The examiner’s reliance on these seemingly independent
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