Appeal No. 2003-1552
Serial No. 10/116,937
therein is an act of preselecting and controlling the
distribution of bubbles since the exact level at which the core
metal 24 is dipped determines the ultimate bubble distribution
along the lure body” (answer, pages 4-5). The depth to which the
core metal is dipped determines the length of the bait, but the
examiner has not provided evidence or reasoning which shows that
the dipping depth determines the bubble distribution along that
length.
The examiner argues that “having the lower end of the core
metal 24 immersed in the material 10A’ would occur at a longer
duration since it is the first portion to enter the material 10A’
and would thus have greater bubble formation than what occurs at
the higher end of the core metal 24 during the dipping process
and would also lend to the idea that the bubble formation is
controlled” (answer, page 5). This argument is not persuasive
because it is mere speculation.
For the above reasons we find that the examiner has not
carried the burden of establishing a prima facie case of
anticipation by Kato of the fishing lure claimed in the
appellant’s claim 27. We therefore reverse the rejection of this
claim and dependent claims 28-30 over Kato.
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