Appeal 2007-1555
Application 09/900,442
would appear applicable if the modification would render the prior art invention
being modified unsatisfactory for its intended purpose, which is not the case here
because the Examiner proposes to modify Headrick and not Fehr (Office action
3/23/04, 3). Binding precedent makes clear that an obviousness rejection cannot
be overcome by attacking references individually—which is precisely what
Appellants are doing. In re Young, 403 F.2d 754, 757, 159 USPQ 725, 728 (CCPA
1968).
In rejecting claim 4-7 and 40-44, the Examiner adds Taber to the 35 U.S.C.
§ 103(a) combination to teach the application of a sealant onto a localized area,
such as between the end cap corner keys 38 and the threshold member 18 in
Headrick as required by claims 4-7 and 40-44 (Office action 3/23/04, 3-4). In
reply, Appellants argue that sealing the ends of the threshold member 18 and the
cap corner keys 36 in Headrick using either the selective application of sealant
taught by Tabor, or the general use of a seal around the entire frame taught by Fehr
would, in either case, hinder the proper function of Headrick which requires fluid
communication between the frame member 12 and the end cap 36 (Appeal Br. 12).
We reject this argument because as found supra, Fehr discloses that the tank
15e in the threshold member 15 can accumulate and drain environmental water to
the exterior of the frame via internal openings P1-P5 without need of channels
formed in an end cap corner key (Fehr col. 8, ll. 31-46), in much the same way as
Appellants’ tank 104 drains water out through internal openings 105, 106
(Specification: 6). We thus conclude a person with ordinary skill in the art would
fusion welding” (Appeal Br. 10).
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