Appeal No. 2002-2188
Application No. 09/442,970
evidentiary sources to piece together a showing of anticipatory
public use or sale is highly suspect.
On a more substantive level, neither of the prior art
practices of repairing a divot with the grass segment struck
therefrom or with a loose growing material such as sand meets the
limitations in independent claims 1 and 11 requiring a divot
repair body moulded into a dry, consolidated mass of a pre-
measured amount. Simply put, the examiner’s determination that
the removed grass segment or an agglomerated clump of the growing
material constitutes such a divot repair body stems from baseless
conjecture as to the physical properties of these entities and a
completely unreasonable interpretation of the claim limitations
at issue as they would be understood by a person having ordinary
skill in the art.
Given the foregoing deficiencies in the examiner’s position,
we shall not sustain the standing 35 U.S.C. § 102(b) rejection of
independent claims 1 and 11 and claims 2 through 6, 8 through 10,
12 through 15 and 17 through 20 which depend therefrom.
SUMMARY
The decision of the examiner to reject claims 1 through 6, 8
through 15 and 17 through 20 is reversed.
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