Appeal No. 2003-0067
Application No. 09/713,480
Robertaccio teaches that the hook portion of a fishhook may be provided with up to three
balloons simulating artificial bait (see Figure 2) to control the buoyancy and orientation of the hook,
that the balloons may be up to 1 inch in diameter (col. 4, lines 6-9), and that the balloons may be
inflated with a gas such as helium (col. 5, lines 3-5), which is known to have a very low specific
gravity. The examiner should determine whether a fishhook made in accordance with these
teachings would inherently be capable of maintaining an orientation in still water with the shank
vertically oriented, it being noted that the orientation of the fishhook shown in Figure 4 of
Robertaccio where the shank is inclined to the vertical is for a presentation in current and/or when
the hook is being pulled through the water by the fisherman (col. 3, lines 58-62, col. 4, lines 35-45).
In addition, in rejecting certain of the appealed claims as being unpatentable over the applied
references, the examiner determined that it would have been obvious to include a weighted portion
on the eyelet end of Robertaccio’s shank in view of Dudeck, and that it would have been obvious to
attach the eyelet of a fishhook made in accordance with Robertaccio’s teachings to one of the
eyelets of “a plug” of the type disclosed by Smith. In each instance, appellant did not specifically
dispute the obviousness of the reference combinations proposed by the examiner. Instead, appellant
argued, and we agreed, that the examiner’s foundation position that Robertaccio’s “vertically
oriented” fishhook responded to the shank vertically oriented limitation of the claims was not
correct. The examiner should determine whether a fishhook made in accordance with Robertaccio’s
above noted teachings and including either a weighted portion as taught by Dudeck, or attached to
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