Appeal No. 2000-0608 Page 3
Application No. 08/799,499
The appellant’s invention provides an anchored outdoor cover which functions to
protect shrubs and plants from long periods in the elements and is also sufficiently
decoratively attractive to enhance the appearance of the lawn or garden in which it is
installed (specification, page 5). Examples of such decorative attractiveness disclosed by
the appellant are a snowman, an angel, and a Christmas tree (Figures 1 and 7). As
manifested in independent claim 10, the invention comprises a frame having elongated
portions adapted to be penetrated into the ground to anchor the frame, a sheath covering
open at the bottom and adapted to overlie the frame and extending to the ground and
defining an enclosed space adapted to receive a plant, “said sheath covering being
formed in a shape simulating an ornamental figure.” The examiner is of the view that Ball
discloses a plant cover including all of the limitations of claim 10 “with the exception of the
sheath covering (15 or 20) being in the form or simulating the form of a specific figure,
such as a snowman or evergreen tree.” The examiner goes on to take the position that
“[t]o construct or modify the exterior sheath covering to simulate a figure . . . is considered
to be a matter of design choice . . . to achieve a desired or intended result, such as an
aesthetic and decorative effect, and as such, would have been an obvious modification of
the apparatus of Ball” (final rejection, Paper No. 11, page 2). The examiner adds in the
Answer that the language of the appellant’s claims “is entirely subjective as to what
constitutes an ornamental figure,” and that the Ball cylindrical sheath could be considered
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