Appeal No. 2004-2347 Page 5
Application No. 09/839,519
Hardy “does not disclose a ladder guard dimensioned for covering the space between
the top step and the ladder top in front of the ladder” (Brief, page 5). We find this
argument not to be persuasive, for a number of reasons. First, Hardy discloses in
Figure 3 a front view of a ladder in which the top of the ladder and at least the first step
downwardly therefrom are covered by the front skirt of the tool holder. Thus, the
disputed limitation of claim 1 clearly reads upon the extension ladder embodiment of
the Hardy invention, which is shown in Figures 3 and 4.
In addition, claim 1 states only that “a” space, not “the” space, between the top
step and the top of the ladder, be covered by the front cover. That is, the claim does
not require that the entire space between the top step and the top of the ladder be
covered, as the appellants’ argument would appear to suggest. Such being the case,
the disputed limitation also is readable on skirt 106 of the Hardy step ladder
embodiment shown in Figure 1. With regard to this embodiment, when installed as
shown in Figures 5 and 6, skirt 102 covers “a” space between the top step and the top
of the ladder (See Figure 6). Furthermore, the Hardy device is capable of being
installed with skirt 102 over the front of the ladder, in which case it would cover the
entire space between the top step and the top of the ladder.
Thus, while the stated use of the Hardy device is not the same as that of the
appellants’ invention, the language of the claim is readable on both embodiments
disclosed in the reference, and therefore the claim is anticipated thereby and the
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