Appeal No. 2001-2382 Page 4
Application No. 09/376,461
Independent claim 1 and dependent claims 2-4 stand rejected as being
anticipated by Chao. There is no dispute that Chao discloses a tubular skylight
comprising a metal flashing, a transparent dome engageable with the flashing, and a
skylight tube extending downwardly from the flashing. It is the examiner’s opinion that
the flashing is seamless since Chao has not stated otherwise in the specification and
no seam is shown in the drawing. The appellant, who is one of the inventors of the
Chao device, urges that the reference does not support such a finding on its face (Brief,
paragraph bridging pages 3 and 4).
Chao does not state in the specification whether or not the flashing is seamless.
Contrary to the conclusion reached by the examiner, it is our opinion that in the
absence of explanation in the specification, the drawings do not provide sufficient
evidence from which to conclude that the flashing is seamless, and cannot be relied
upon as the sole basis for this conclusion. In fact, it could be argued that there is a
seam at the point of joinder of the curb and the skirt, for a line is present there in the
drawing. It not being clear that this requirement is disclosed or taught by Chao, we will
not sustain the Section 102 rejection of claim 1 or, it follows, of claims 2-4, which
depend therefrom.
Independent claim 6 also stands rejected as being anticipated by Chao. Claim 6
requires the presence of a surface strengthening anomaly in the flashing. In this
rejection, the examiner has taken the position that Chao does disclose a seam in the
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