Appeal No. 2006-3370
Application No. 10/444,736
Appellant=s general argument concerning the Ahandle,@ in the claims that are
rejected over Payne and Williams, only corresponds to the requirements of dependent
claim 7. Claim 7 also stands rejected over Payne, Williams, and Jondole, in the second
ground of rejection. Jondole teaches a handle 27, even if we were to find that Payne
fails to teach a handle.
In any event, we agree with the examiner that the topmost flanges of the Payne
tool, as shown in Figures 3 and 4, is a handle for all that claim 7 requires. We disagree
with appellant=s assessment (Brief at 6) that Figures 1 and 2 of Payne show the
operator=s hands wrapped entirely around the elongated body member, and not utilizing
the Atop flanges@ in any manner whatsoever. In view of the examiner=s reading of the
claims on the Payne device, the operator=s hands in Figures 1 and 2 of the reference do
not contact the recessed portions of the elongated body member, but contact the
flanges that extend perpendicular to the longitudinal direction of the elongated body, the
flanges being consistent with the structural requirements of instant claim 7.
Appellant=s only additional argument in response to the first ground of rejection is
that both Payne and Williams disclose tools that require a predecessor member (e.g.,
an existing stud or furring strip) while appellant=s invention does not. Although appellant
submits this to be an Aimportant structural aspect@ of the invention (Brief at 7-8), the
device set forth by representative claim 1 is silent with respect to the existence or non-
existence of predecessor members. Appellant does not point out, in response to the
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