Ex parte SIMMONS - Page 6



               Appeal No. 1998-2032                                                                     
               Application No. 08/410,048                                                               


                     With regard to the remarks on page 5 of the                                        
               supplemental answer, the examiner has misapplied the ruling                              
               in In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA                               
               1955) (discovery of an optimum range by routine                                          
               experimentation is not patentable).  In the case before us,                              
               we are not concerned with ranges of any kind.  The claimed                               
               difference in structure, namely the triangular plate in                                  
               appellant=s invention as compared with the bar like forming                              
               member in the primary references and the triangular frames                               
               in the secondary references, cannot be likened to a                                      
               difference in numerical ranges.                                                          

                     The examiner=s decision to reject claims 1-24 as                                   
               unpatentable over the `999 Baldacci patent in view of each                               
               of the secondary references (namely the `776 Ottaviano                                   
               patent, the `613 Ottaviano patent and the Komaransky                                     
               patent) is reversed, the examiner=s decision to reject                                   
               claims 1-24 as unpatentable over the `581 Baldacci patent                                
               in view of each of the foregoing secondary references is                                 
               reversed and the examiner=s decision to reject claims 1-24                               






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