Appeal 2007-0009
Application 10/345,461
1 parts will not rattle when subjected to wind forces, and the illustration in
2 Gerstner that appears to show abutting rails (fact 9), we find that an artisan
3 would have been motivated to use abutting rails in Pettit.
4 Turning to the contention of whether the ribs 43 of Pettit constitute a
5 lock, we are cognizant of the Examiner's assertion that Appellant's
6 Specification refers to the described lock as being "[p]urely by way of
7 example" (fact 4). However, considering that disclosure with the previous
8 recitation in the Specification that the lock is provided to prevent someone
9 from stealing the rails, we interpret the reference to the lock being "[p]urely
10 by way of example" to mean that other locks may be used. The friction fit
11 cap of Pettit is not a lock, as the cap can be removed by pulling it off or
12 pushing or prying it off, such as with a screwdriver and hammer. Because
13 the lock is provided to prevent stealing the fence, we find that a friction fit is
14 insufficient to meet the limitations of claim 1. It follows that we agree with
15 Appellant (Br. 5) that the combined teachings and suggestions of the prior
16 art would not have suggested all of the language of claim 1.
17
18 CONCLUSION OF LAW
19 On the record before us, Appellant has shown that the Examiner has
20 erred in rejecting claim 1 under 35 U.S.C. § 103(a) as being unpatentable
21 over Pettit in view of Bright and Gerstner. In addition, we cannot sustain the
22 rejection of dependent claims 2, 4, and 5 because the Examiner has not
23 shown how the additional references make up for the basic deficiency of
24 Pettit, Bright, and Gerstner. We observe that Cain, U.S. Patent 5,593,141,
25 relied upon by the Examiner to reject claim 2, does show a padlock locking a
7
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