Appeal 2007-2121
Application 10/705,083
We are also unconvinced by Appellant’s contentions that one of
ordinary skill in this art would not have extended the pointed end of shaft 22
of Smith’s driver slightly from the bottom end opening of Smith’s tubular
stake to provide penetration into the ground. Indeed, we notice and
Appellant acknowledges in the Specification (Specification 7:7-14 and Fig.
8) that stakes are well known to generally have a pointed surface for
penetration as illustrated by Gipp’s base. While one of ordinary skill in this
art would have known from Smith and Roger that a tube can be driven into
ground, this person would have recognized that the assistance of a driver
with a penetrating point as shown by Roger would provide penetration
similar to a penetration point on a common pointed stake. Appellant has not
established that the location of the drive surface on the tubular stake to be
struck by the driver or the type of hammer used as the drive results in the
capability of the penetrating point to penetrate the ground in a different
manner than if the drive surface was at the top end of the tubular stake.
We determine one of ordinary skill in the art would have used
Anglea’s end cap having a filament bundle as a marker signal in the top end
opening of Smith’s tubular stake, frictionally held in place as shown by
Anglea. We find no limitation in claim 9 requiring the end cap must be
capable of removal from the stake as Appellant argues. See In re Self,
671 F.2d 1344, 1348-349, 213 USPQ 1, 5 (CCPA 1982). We further
determine that Gipp also would have suggested the use of an end cap of a
filament bundle as a marker signal in Smith’s tubular stake to this person.
With respect to claim 14, one of ordinary skill in this art practicing the use
of Smith’s tubular stake and driver would have used a hand tool to drive the
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