Appeal No. 2005-0469 Page 6
Application No. 10/093,994
position adjacent pieces such that the indicia thereon sum to zero. The rejection of
independent claim 1, as well as claims 5 and 20 which appellants have grouped
therewith and not separately argued, as being anticipated by Byrne is thus sustained.
Claim 3 depends from claim 1 and further recites that the indicia are symbols
representing “fire” and “water.” The concept represented by the indicia is in the mind of
the beholder and, as such, the light and dark circles of Byrne’s pieces are symbols
representing “fire” and “water” as called for in claim 3. The examiner’s application of the
additional teachings of Henderson for this feature is thus superfluous. The rejection of
claim 3 as being unpatentable over Byrne in view of Henderson is sustained.
The rejection of claim 2 as being unpatentable over Byrne in view of Henderson,
however, is not sustained. In light of Byrne’s teaching on page 1, in lines 64-65, that no
region of the game pieces is left blank, we find no suggestion in Henderson to provide
any blank regions on Byrne’s pieces. As claim 4 depends from claim 2, it thus follows
that we cannot sustain the rejection of claim 4 as being anticipated by Byrne.4
4 The rejection of claim 4, which depends from claim 2, as being anticipated by Byrne appears to
have been an inadvertent error, in light of the examiner’s rejection of claim 2 as being unpatentable over
Byrne in view of Henderson.
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