Appeal No. 2003-1371 Page 6
Application No. 09/186,856
459, 467 (1966); In re Dembiczak, 175 F.3d 994, 998, 50 USPQ 1614, 1616 (Fed. Cir.
1999); In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995)).
Here, "Naka et al. discloses a multi-player video game which has 'a cooperative
mode' and a 'competition mode.'" (Appeal Br. at 8.) In playing the game, "[t]wo players
. . . try[] to have their characters race through [a] playfield trying to accumulate points by
surmounting obstacles, slaying enemies or gathering 'magical rings'. . . ." Col. 22,
ll. 65-68. Because the video game involves surmounting obstacles, slaying enemies, or
gathering magical rings, we find that it involves an adventure.
B. ANALOGOUSNESS OF CURCHOD
The examiner finds, "Curchod is a game utilizing video technology." (Examiner's
Answer at 5.) The appellants argue, "a golf simulator is not analogous to a video game.
None of the classes and subclasses in the classification or field of search in Naka et al.
can be found in the classification or field of search in Curchod." (Appeal Br. at 13.)
"Whether a reference in the prior art is 'analogous' is a fact question." In re Clay,
966 F.2d 656, 658, 23 USPQ2d 1058, 1060 (Fed. Cir. 1992) (citing Panduit Corp. v.
Dennison Mfg. Co., 810 F.2d 1561, 1568 n.9, 1 USPQ2d 1593, 1597 n.9 (Fed. Cir.
1987)). Two criteria have evolved for answering the question: "(1) whether the art is
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