Appeal No. 2001-0291 Page 9
Application No. 08/772,559
Claim 1, the sole independent claim before us on appeal,
recites a guardrail comprising outer curves and a central
portion between the outer curves, the central portion and
outer curves being positioned to provide “an effective depth
of between substantially 9 to 15 inches.” As defined on page
2 of appellants’ specification, the “effective depth” is the
distance between the centerlines of the two outer curves.
This “effective depth” or capture area is intended to receive
a moving vehicle in a recessed portion of the guardrail
barrier to stabilize the vehicle and reduce the tendency of
the vehicle to vault over or dive under the barrier
(specification, p. 1).
Brown discloses a barrier which is “about a foot wide”3
(col. 2, line 28) and Martin does not specify any dimensions
of the disclosed road guard. Neither Brown nor Martin
expressly discloses an effective depth value or range. Under
principles of inherency, when a reference is silent about an
asserted inherent characteristic, it must be clear that the
missing descriptive matter is necessarily present in the thing
It appears that Brown’s width dimension corresponds to appellants’3
depth dimension.
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