Appeal No. 2004-0176 Page 5
Application No. 09/651,328
204 to vibrate over a different length and thus produce a different pitch. The game call
permits the user to call game using multiple pitch sounds without blowing through a
mouthpiece (column 1, lines 9-10).
Lamo, Hall and Bean each disclose different means of supplying air to the sound
producing portion of a game call. Lamo and Bean each connect a bellows (air
reservoir) to the sound producing portion as a means of generating air flow, while Hall
connects a mouthpiece to the sound producing portion as a means of supplying air flow
to the sound producing portion. None of these references, either alone or in
combination, teaches or suggests connecting an air tube to an air reservoir which is in
turn connected to the sound producing portion as called for in appellant’s claims 1 and
8. In fact, the connection of an air tube having a proximal end into which the user may
exhale or inhale to the external valve 74 on Lamo’s bellows housing 62 would appear to
be at odds with Lamo’s objective of providing a game call which can be operated
without using the mouth. From our perspective, the only suggestion for putting the
selected pieces from the references together in the manner proposed by the examiner
is found in the luxury of hindsight accorded one who first viewed the appellants'
disclosure. This, of course, is not a proper basis for a rejection. See In re Fritch, 972
F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992). It follows that we cannot
sustain the examiner’s rejections of independent claims 1 and 8, or claims 2-4, 6, 7, 9-
11 and 13-15 depending therefrom, as being unpatentable over Lamo in view of Hall
and claims 5 and 12 as being unpatentable over Lamo in view of Hall and Bean.
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