Appeal No. 1998-2019 Page 6
Application No. 08/398,752
therewith" (column 2, lines 6-10), in contrast to the metal flag staff of the conventional corner
flag.
Graw discloses a road marker for a road surface, the marker comprising a plurality of
plastic bristles (2) which are bonded together at one end thereof and fastened by cement (3) into
the road surface (Figure 1), arranged at an oblong ridge of a brush (4) which is fastened in a
slot in the road surface by cement (3) (Figure 2), attached to a conventional street nail (5)
(Figure 3) or attached to a thin layer or disk (6) which is glued to the road surface. The
bristles may be elastically bent in all directions on the road surface without causing significant
noise (translation, page 2). Graw notes that the road markers are "especially inexpensive to
manufacture if a bundle of bristles or hair which is combined in a common mount, is involved"
(translation, page 2).
In rejecting claims 1-5 and 11-15 under 35 U.S.C. § 103, the examiner has implicitly
determined that Shopbell fails to disclose all of the limitations of the device recited in
independent claims 1 and 11 and takes the position that it would have been obvious to4
substitute bristle members for the solid body 1 of Shopbell in view of the teachings of Graw,
"since such would be seen to reduce construction cost as well as simplify the construction of the
4As the examiner has not pointed out these differences on the record, to specifically address the examiner's
findings in this regard would require speculation on our part.
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