Appeal No. 2004-1004
Application No. 10/011,074
Thus, the term “flexible body portion” as recited in appealed
claim 1 encompasses or reads on elastomers or polymers that are
flexible to any degree of flexibility, however small that degree
of flexibility might be. Also, the appellant proffers no
objective evidence to establish that: (i) completely inflexible
rubbers exist; and (ii) minimally flexible rubbers cannot be
used as the lure body for purposes of Elges’s invention.
Accordingly, we cannot reverse the examiner’s rejection on this
basis.
As to appealed claim 2, the appellant argues that Elges
does not describe at least one weight that is completely
encapsulated in the flexible body. (Reply brief, page 6; appeal
brief, page 8.) Because the examiner offers no rebuttal, we
reverse this rejection as to appealed claim 2.
The rejection is affirmed as to appealed claims 1, 3
through 5, 8, and 9 but reversed as to appealed claim 2.
Remand
In the reply filed Dec. 2, 2002, the appellant amended
claims 1 and 8 by inserting “substantially solid” before the
recitation “flexible body portion.” The examiner should analyze
whether claims 1 and 8, as amended, comply with the requirements
of 35 U.S.C. § 112.
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