Appeal No. 2003-0067
Application No. 09/713,480
the plane of the paper is considered to be a vertical plane with the top of the page being the upward
direction, the shank of the fishhook is shown as being inclined at an angle to the vertical in each of
the figures. Thus, the examiner has not accounted for the argued limitation in each of appellant’s
independent claims that the shank is vertically oriented in applying the Robertaccio reference
against the claims. For this reason the examiner has not met his initial burden of establishing a
prima facie case of obviousness of the subject matter of claim 11, which has been rejected on the
basis of Robertaccio alone, such that rejection (2) of claim 11 cannot be sustained.
Furthermore, in rejecting claim 10 additionally in view of Dudeck, claims 12-14 additionally
in view of Woolfe, and claim 15 additionally in view of Smith, the examiner likewise appears to be
of the view that the limitation of the claims calling for the shank to be vertically oriented in the
water is fully met by Robertaccio. For the reasons explained above, we cannot accept this position.
Accordingly, the examiner also has not met his initial burden of establishing a prima facie case of
obviousness of any of claims 10 and 12-15, such that rejections (1), (3) and (4) likewise cannot be
sustained.
Remand
This case is remanded to the examiner for consideration of the following matters.
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