Appeal No. 1999-0614 Page 8
Application No. 08/804,410
preamble of claim 7. Moreover, from our viewpoint, the Vise
fence system is not capable, without modification, of
effecting such a conversion, as the panels (24) of Vise do not
give the fence an appearance which could reasonably be
considered "a wood appearing planked fence" as claimed.
Claim 7 further recites two features of the planks which
distinguish the planks of the appellant's invention from the
panels (24) of Vise to achieve the function set forth in the
preamble and help further define what the appellant means by
"a wood appearing planked fence." Specifically, the claim
requires that the planks be provided with "upper slanted
surface edges and vertical outer surfaces that simulate the
appearance of a wooden fence in both surface grain and color."
In determining that modification of the Vise panels to
have upper slanted surface edges and vertical outer surfaces
as claimed would have been obvious, the examiner, in effect,
dismisses these features as mere design considerations solving
no stated problem. It is readily apparent from the claims on
appeal, from the appellant's specification (page 1) and from
the appellant's brief (page 9) that the claimed shape and
surface of the planks serve to fulfill the stated objective of
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