Appeal No. 1998-0236
Application No. 08/472,536
differs from Bridge’s construction. Furthermore, an end
surface of Bianco’s side rail will be disposed outwardly of
any recess formed in the corner support post for the location
of the side rail taught in the Bianco reference.
In view of the foregoing, we are satisfied that the
combined teachings of the applied references would have
suggested the subject matter of claim 2 to one of ordinary
skill in the art to warrant a conclusion of obviousness under
the test set forth in In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981). Accordingly, we will sustain the
rejection of claim 2. We will also sustain the rejection of
dependent claims 3, 5 and 6 because the patentability of these
claims has not been argued separately of claim 2. See In re
Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir.
1987) and In re Burckel, 592 F.2d 1175, 1178-79, 201 USPQ 67,
70 (CCPA 1979).
With regard to the rejection of claim 10, which is
directed to the post structure per se, the Vivoli reference
discloses a fence construction having horizontal rails 6
supported on upstanding post assemblies. Each post assembly
comprises separately formed upper and lower tubular post
9
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