Appeal No. 98-3291
Application 08/534,705
holding... a Christmas tree” set forth in line 2 of claim 5.
Accordingly, we will not sustain the examiner's rejection of
appellant’s claims 5 through 7 under
35 U.S.C. § 112, second paragraph.
We next look to the examiner's prior art rejections of
the appealed claims, turning first to the rejection of claims
5 through 7 under 35 U.S.C. § 103 as being unpatentable over
Copenhaver in view of Spinosa. Claims 5 through 7 are
directed to the embodiment of appellant’s invention seen in
Figure 3.
Claim 5 expressly sets forth a tree stand which holds the butt
of a Christmas tree above the surface on which the tree stand
rests and a receptacle for retaining water adapted to be
positioned
beneath the butt end of said tree, with said receptacle being
“separate and apart from said tree stand.” Recognizing that
the water receptacle (e.g., 32) in Copenhaver is clearly part
of the tree stand, the examiner turns to Spinosa, urging that
Spinosa teaches a tree irrigation device wherein “the
receptacle for retaining water (30) is separate from the tree
5
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