Appeal No. 2005-0775 Page 5
Application No. 09/815,628
of ordinary skill in the art familiar with the teachings of both Venegas I and Venegas II
would have selected one or the other of these techniques for constructing the guard rail
or hand rail assembly and would have found no suggestion in Venegas II to modify the
guard rail assembly of Venegas I.
The examiner’s application of Parisien does not make up for the above-noted
deficiency of the combination of Venegas I and Venegas II. It follows that we shall also
not sustain the rejection of claim 7 as being unpatentable over Venegas I in view of
Venegas II and Parisien.
REMAND TO THE EXAMINER
We remand this application to the examiner to consider whether the subject
matter of claim 17, and any of the dependent claims, would have been unpatentable
over Venegas II in view of Venegas I or Bobrowski. As evidenced by Venegas I and
Bobrowski, the use of partitions or panels within guard rail frameworks was well known
at the time of appellant’s invention. Thus, to have provided such a partition or panel
within the handrail assembly of Venegas II to prevent dangerous falls, for example, in a
stadium setting would appear to have been obvious to one of ordinary skill in the art.
With particular regard to claim 7, Parisien (abstract) evidences that panels and mesh
were recognized alternatives as infill material in guardrails at the time of appellant’s
invention and, as such, would have provided ample motivation to use a mesh infill panel
in the framework of Venegas II.
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