Appeal No. 2005-0469 Page 2
Application No. 10/093,994
define a binary set, that is, one of two polarity types. The game is played by placing the
tiles or game pieces on a board such that any four tile halves forming a square have
indicia which sum to zero, that is, the number of indicia of one polarity equals the
number of indicia of the opposite polarity for the square. This is perhaps best illustrated
in Figures 4A-4C, 5A and 5B, wherein the fire indicia are of one polarity and the water
indicia are of the other polarity. As explained on page 6 of appellants’ specification, the
concept of polarity is quite broad, inasmuch as the binary distinction may be made by
providing indicia which are generally thought to be opposites, such as “+” and “-”
symbols or fire and water symbols, or simply indicia of two different sizes or colors. A
copy of the claims under appeal is set forth in the appendix to the appellants’ brief.
The examiner relied upon the following prior art references of record in rejecting
the appealed claims:
Henderson 4,239,231 Dec. 16, 1980
Byrne 2,191,953 Dec. 31, 1987
(UK patent application)
The following rejections are before us for review.
Claims 1, 4, 5 and 20 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by Byrne.
Claims 2 and 3 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Byrne in view of Henderson.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejections, we make reference to the answer
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