Appeal No. 2005-1271
Application No. 09/922,376
can take on any one of numerous shapes so as to attract the
interest of a pet" (column 8, lines 46-49). Consequently, we
agree with the examiner that Deshaies describes the subject
matter of claims 1, 2, 7, 8 and 11 within the meaning of § 102.
Appellant contends that the device of Deshaies does not have
an outer layer that is shaped to resemble a food item since "its
surface is covered with brushes" (page 12 of principal brief,
first paragraph). However, the fact that a brush can protrude
from the outer layer does not negate the fact that the outer
layer of Deshaies, itself, can be shaped to resemble a food item,
such as a bone. Furthermore, Deshaies teaches that the brush
protrudes from the outer layer only when it is compressed (see
column 3, lines 3 et seq. and 22-25).
With respect to claims 7 and 8, appellant maintains that
Deshaies does not disclose a valve mechanism capable of alternate
movements substantially perpendicular to the wall. Appellant
points out that "[t]he Deshaies invention shows valves at Figure
7 which are slits deformable under pressure and there fore [sic,
therefore] move in a direction substantially parallel with the
wall" (page 11 of principal brief, second paragraph). However,
the examiner explains that Figures 2 and 7 of Deshaies were not
relied upon in the rejection but, rather, the examiner cites
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