Appeal No. 2002-1378
Application No. 09/196,938
“substantially the entire height” of a “bubble trunk”, considering that this would tend to obstruct
one’s view of the bubble display feature of the trunk. Claims 5-6, 9-15 and 27-31, being dependent
on claim 1, stand with claim 1.
With the foregoing in mind, we do note that Dick et al. evidences that some artificial trees in
the prior art do have artificial foliage which extends along substantially the entire height of the
simulated trunk; yet the foliage is relatively sparse and, thus, does not substantially obstruct one’s
view of the trunk. The examiner should consider the question of whether it would have been
obvious under 35 U.S.C. § 103 to use a “bubble trunk” to enhance the aesthetic appearance of
artificial trees of this genre, and whether it would have been further obvious to incorporate a
plurality of rods in the superstructure in order to enhance its structural integrity.
As for claims 16-26, we note that neither claim 16 nor claim 20 embraces the combination of
distinctive features associated with claim 1. For instance, claim 16 does not require that the recited
rods be spaced along “substantially the entire height” of the bubble trunk. Claim 20 does not even
require a “bubble trunk”. For these reasons, we agree with the examiner that independent claims 16
and 20, and those claims which depend from them, do not define a patentably distinct invention.
Appellants nevertheless argue that the use of a garland to create the impression of foliage
would not have been obvious from the known use of garlands as a trimming to decorate a tree. We
are not persuaded by this argument since the “comprising” language used in appellants’ claims is
inclusive. In other words, appellants’ claims read on the use of a garland as a decorative trimming
(which appellants acknowledge as a known use), creating the impression of foliage, even in a
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