Appeal 2006-2206
Application 10/743,380
seine device to at least partially embed in the mud of the stream bed).
Appellant bears the burden of showing that such apparently-inherent feature
(i.e., embedding) would not actually occur. In re Best, 562 F.2d 1252, 1254-
55, 195 USPQ 430, 433 (CCPA 1977). Appellant has failed to satisfy this
burden.
We further observe that Flynn’s Figure 7 shows his device is inserted
into a stream such that it rests in the stream bed having rocks and a large
rock is placed “. . . on one or both of said support cross members 40 and/or
42” to hold the aquatic seine in place (Flynn, col. 5, ll. 47-48). In such a
support arrangement, it is appropriate to consider the rock(s) on the support
cross member(s) as part of the stream bed, so that the rocks embed the
support cross members (40, 42).
For the above reasons, we sustain the Examiner’s § 102(b) rejection of
argued claim 1 and non-argued claims 2 and 4.
CLAIM 7: DEVICE
Appellant’s only argued distinction is that Flynn fails to disclose “. . .
a flexible screen with its opposing sides aligned and attached to the side rails
. . .” (Br. 16). In that regard, Appellant argues that Flynn attaches flexible
net 52 to the two parallel vertical members 12 and 14 and not L-shaped
horizontal members 16 and 18 (i.e., Flynn’s structure corresponding to
Appellant’s claimed “side rails”) (Br. 13-15).
The Examiner states that flexible net 52 is, at least, indirectly attached
to the L-shaped horizontal members 16 and 18 (i.e., side rails) via the
vertical members 12 and 14 (Answer 7). The Examiner contends that the
claim term “attached” “. . . does not imply . . . [or] require that the flexible
5
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: September 9, 2013