Appeal No. 1999-1082 Page 8
Application No. 08/813,359
We fail to perceive any teaching, suggestion or incentive which would have led one of
ordinary skill in the art to locate a longitudinal channel in the base of the Kwiatkowski
device, which already is provided with a series of lateral channels that form part of the
attaching means, for to do so would appear to complicate the structure of the device and
compromise its attachment to the disclosed roofing system, which would have been a
disincentive to the artisan. From our perspective, suggestion for this proposed
modification is found only in the hindsight afforded one who first viewed the appellant’s
5
disclosure, which is improper as a basis for a rejection. The rejection of claims 2-4 is not
sustained.
Claim 7 adds to claim 1 (through claim 6) the requirement that the sides of the
upwardly projecting plate slope upward and inward, and claim 8 that the plate decreases in
thickness as it extends upward. Zaleski discloses a snow guard in which the plate clearly
has exactly that configuration (see Figures 2 and 6). In view of the fact that the appellant
has attached no criticality to the claimed shapes in his disclosure, it is our position that
they would have been matters of design choice well within the purview and the skill of the
artisan. The rejection of claims 7 and 8 is sustained.
CONCLUSION
The rejection of claims 1, 6, 9-15 17 is sustained.
5In re Fritch, 972 F.2d 1260, 1264, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
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