Appeal No. 2004-1750
Application No. 09/985,937
ordinary skill in the art at the time of appellants' invention
based on the combined teachings of Nosker '932 and Reis as
generally discussed above in relation to claim 1 on appeal. Note
particularly, the disclosure in Nosker '932 at column 7, line 49,
to column 8, line 11, concerning maintaining desired spacing
between railroad rails attached to ties and of providing a weight
bearing support for rails attached to ties that can bear a
vertical static load of at least about 39,000 lbs. We also note,
given appellants' grouping of claims as set forth on page 3 of
the brief, that method claims 24 and 25 will fall with claim 1
under the 35 U.S.C. § 103 rejection.
In summary, we note that the examiner's rejection of claims
24 and 25 under 35 U.S.C. § 102(b) as being anticipated by Garber
has not been sustained, while the 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 the combined teachings of
Nosker '932 and Reis, has been sustained with regard to claims 1,
4, 17 through 20, 24 and 25, but not with regard to claims 3, 8,
9, 13 through 16 and 27 through 34.
1111
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