Appeal No. 1999-1082 Page 7
Application No. 08/813,359
17 that require that the snow guard be attached exclusively by non-invasive means or that
preclude the use of other means in addition to the adhesive. Likewise, the arguments that
Kwiatkowski does not place support members on both the front and the rear of the plate,
and that the plate must be attached to the lower portion of the base rather than the upper
4
portion, are not persuasive in that the appellant’s claims are not so specific.
Claims 2-4 stand rejected as being unpatentable over the combined teachings of
Kwiatkowski and McMullen. Claim 2, from which claims 3 and 4 depend, adds to claim 1
the requirement that the base comprise an “elevated, longitudinal, rib-receiving channel.”
McMullen is a design patent directed to a snow guard in which, as shown, the upstanding
plate is provided with a an elevated longitudinal channel. We do not agree with the
examiner’s position that it would have been obvious to one of ordinary skill in the art to add
this feature to the Kwiatkowski snow guard “for additional strength,” because it is
“essentially a corrugation,” and the use of corrugations was “well known in the construction
art” to provide additional stiffness and strength to a member (Answer, page 5). First of all,
the examiner has provided no evidence in support of this conclusionary statement.
Second, even if the statement is accepted for the truth of the assertions made therein,
McMullen teaches that the channel be placed in the upstanding plate and not in the base.
4See In re Self, 671 F.2d 1344, 213 USPQ 1 (CCPA 1982).
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