Appeal 2007-2121
Application 10/705,083
We find no specific definition of the preambular term “grade marker”
in the written description in the Specification, and the disclosure of a generic
“marker stake” includes “a variety of applications such as tent stakes, as trail
or backpack marking devices, as markers for sports fields, as roadside
markers, etc.” (Specification 7:4-14). Indeed, Appellant describes prior art
“grade markers” as including stakes with “a brightly painted top,” an
attached “flag,” and “a bundle of brightly colored, polymer filaments”
attached by a metal band or clip or by a tape wrap, and similarly describes
the claimed stakes (id. 1-2 and 9:12-15). Thus, the term “grade marker”
requires only that the tubular stake must be marked with some kind of signal
in any noticeable manner. Furthermore, the transitional term “comprising”
opens these claims to include stakes and drivers having additional features as
well as methods of driving the same having additional steps than specifically
required. See, e.g., Vehicular Technologies Corp. v.
Titan Wheel Int’l, Inc., 212 F.3d 1377, 1383, 54 USPQ2d 1841, 1845 (Fed.
Cir. 2000); Genentech, Inc. v. Chiron Corp., 112 F.3d 4954, 501,
42 USPQ2d 1608, 1613 (Fed. Cir. 1997); In re Baxter, 656 F.2d 679, 686
210 USPQ 795, 802 (CCPA 1981).
We agree with the Examiner’s findings of fact, to which we add the
following. We find Smith would have additionally disclosed to one of
ordinary skill in this art a tool to transmit a driving force to, e.g., spikes and
stakes, including a hollow tubular stake which can be inserted into a
predrilled hole in a landscape timber and driven into the ground (Smith, e.g.,
col. 1, ll. 9-12, col. 2, ll. 10-18, and Figs. 1 and 4). The tool has pointed
lower shaft 22 for insertion into tubular stake 14; upper head portion 20 for
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