Appeal No. 2004-1750
Application No. 09/985,937
Regarding the examiner's rejection of claims 1, 3, 4, 8, 9,
13 through 20, 24, 25 and 27 through 34 under 35 U.S.C. § 103(a)
as being unpatentable over Nosker '932 in view of Reis, we note
that Nosker '932 discloses use of polymeric materials for making
railroad ties and, more specifically, use of a composition
containing high-density polyethylene (HDPE), polystyrene (PS) and
a coated fiber component consisting of fiberglass fibers coated
with a thermoplastic polymer such as polypropylene (PP),
polystyrene (PS) or HDPE (col. 4, line 40 - col. 5, line 43).
What Nosker '932 lacks is any teaching or suggestion of a
railroad tie having an arrangement of concave shapes in at least
one surface thereof, as recited in the claims on appeal. To
account for this difference, we look to Reis, noting that this
patent discloses a railroad tie used in track construction
wherein the ties each have a series of concave shaped recesses
(9) formed in the bottom surface thereof, which recesses serve to
provide for "greater grip of the tie body to the foundation, or
road-bed, due to the suction effect produced by the employment of
such recesses" (page 1, col. 2, lines 46-51).
After considering the collective teachings of the applied
patents, we agree with the examiner that it would have been
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