Appeal 2006-2206
Application 10/743,380
3. Claims 8 and 11 are rejected under § 103(a) as being unpatentable
over Flynn in view of Crane.
Rather than reiterate the respective positions advocated by the Appellant
and by the Examiner concerning these rejections, we refer to the Brief and
the Reply Brief and to the Answer respectively for a complete exposition
thereof.
OPINION
35 U.S.C. § 102(b) REJECTION OVER FLYNN
CLAIM 1: METHOD
Appellant’s only argued distinction regarding claim 1 is that Flynn
fails to disclose “[the] support portions of the frame are embedded in a bed
underlying the water as part of the insertion step” (Br. 12). Appellant
contends that laying a “rock or other relatively heavy object on one or both
of said support cross members 40 and/or 42”, as Flynn discloses (col. 5, ll.
46-48), “is not the same as embedding the one or more support portions in a
bed as part of the insertion step of placing the frame into shallow water” (Br.
12).
We agree with the Examiner that claim 1 is anticipated by Flynn’s
disclosure.
In making his rejection, the Examiner states that “. . . a heavy object is
placed on the device which allows for the portion of the device resting on
the waterbed [i.e., stream bed] to be at least partially embedded in the
waterbed [i.e., stream bed]” (Answer 4). The Examiner’s position appears to
be reasonable because, in the normal use of Flynn’s aquatic seine device, the
bottom support structure of the aquatic seine will inherently become
embedded to some extent (e.g., a muddy stream bed would cause a weighted
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