Appeal No. 96-3543
Application No. 08/153,623
appellants point out that their invention is particularly
useful as a climbing net for children, and that the color
requirements of these claims taken in conjunction with the
manner in which the net is constructed result in a diagonally
oriented “lightening bolt” pattern of color which is very
attractive. The examiner acknowledges that this teaching is
lacking in the references, but takes the position that it
would have been obvious to form diagonally extending color
patterns “because the net would be more aesthetically pleasing
to the eye” (Answer, page 5).
We do not agree with the examiner. These claims set
forth a specific arrangement of weft and warp members which
constitute the net construction, and recite a color
requirement for one of the weft members and one of the warp
members which results in a particular pattern of color across
the net. From our perspective, the issue is not simply
whether using color in a net would have been obvious to one of
ordinary skill in the art, but is much more limited, that is,
whether incorporating it into the structure in the manner
recited in these claims would have been obvious. Based on the
evidence and argument the examiner has provided on the record,
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