Appeal No. 2000-1667 Page 7
Application No. 09/071,305
to modify Constantin so as to include a ripper bar in front of
the middle buster 48 to loosen the road surface.
Therefore, we will not sustain this rejection as it is
directed to claim 18 or claims 19, 20, 25-27 and 29 dependent
therefrom.
We turn next to the examiner’s rejection of claims 18,
20, 25-27, and 29 under 35 U.S.C. § 103 as being unpatentable
over Henthorn in view of Bach. The examiner is of the opinion
that Henthorn discloses:
. . . ripping the surface with a plurality
of teeth 28 spaced along a ripper bar and
separating course material from fine
material as illustrated in figure 3 [Final
Rejection at page 5].
The examiner relies on Bach for teaching that it is common
knowledge that the ballast particles which serve as the
foundational bed for railroad tracks become interspersed with
finely divided material that results in loose track and poor
conditions because water cannot drain rapidly through the
ballast. The examiner further relies on Bach for disclosing
that it would have been conventional to clean the ballast
periodically in order to remove the finely divided particles
to effect proper drainage. The examiner concludes:
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