Appeal No. 1999-0614 Page 6
Application No. 08/804,410
Initially, with regard to the claimed "vertical outer
surfaces that simulate the appearance of a wooden fence in
both surface grain and color," while such language may
encompass a variety of surfaces and colors, we do not find
tenable the examiner's position that the foraminous expanded
metal panels (24) of Vise can be considered as having vertical
outer surfaces that simulate the appearance of a wooden fence
in both grain and color.
The appellant argues that the purpose of the appellant's
invention is to convert the appearance of an existing chain
link fence into the appearance of a wooden plank fence and
that neither Vise nor Nugent teaches such a conversion. The
appellant contends that, contrary to the assertions of the
examiner, the appellant's claimed structure does have a
defined purpose (to simulate the appearance of a wooden fence
plank) and, thus, "cannot merely be ignored if not found in
the art or disregarded under the disguise of design choice"
(brief, page 9). We agree with the appellant.
Vise discloses a fence system including a frame or
support structure (22), which, as shown in Figure 6, includes
existing chain link material (70), and foraminous panels (24)
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