Appeal No. 2002-1378
Application No. 09/196,938
Later in our decision we refer to the following prior art reference which was cited during ex
parte prosecution by the examiner:
Dick et al. 4,331,720 May 25, 1982
The following rejections are before us for review:
I. Claim 1-6, 10-12 and 15-31 stand rejected for obviousness under 35 U.S.C. 103 in view
of Burnett (‘157) in combination with Hamlett.
II. Claim 13-14 stand rejected for obviousness under 35 U.S.C. 103 in view of Burnett
(‘157) in combination with Burnett (‘771).
We have fully considered the record on appeal in light of the positions taken by the
appellants and by the examiner.
Having done so, we shall affirm the examiner’s rejection as to claims 16-26, and reverse as
to claims 1-6, 9-15 and 27-31, for the following reasons:1
With regard to claims 1-6, 9-15 and 27-31, we agree with appellants that the examiner has
failed to establish that the particular combination of elements recited in claim 1 would have been
obvious within the context of 35 U.S.C. § 103. As appellants point out, there is nothing to suggest
that an ordinary artisan in this field would choose to apply the concept disclosed by Burnett ‘157 to
construct another type of artificial tree, especially one where branch-like rods are spaced along
1 At this point we note that claim 9 has been indicated as being rejected, yet has not been
included in the examiner’s statement of the rejection. Be that as it may, this apparent oversight is
not grounds for a remand since claim 9 depends from claim 1; thus claim 9 is considered to stand
with its parent claim in avoiding the examiner’s rejections.
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