Appeal No. 2004-2347 Page 7
Application No. 09/839,519
(3)
Claim 2 has been rejected as being unpatentable over the combined teachings
of Hardy and Jankowski. This claim adds to claim 1 the limitation that the means for
attaching the device to the ladder comprises hook and loop fasteners. Jankowski has
been applied by the examiner for its teaching of using such a means to attach a cover
to a structure in order to secure such means together (Answer, page 2). The question
under 35 U.S.C. § 103 is what the references would have suggested to one of ordinary
skill in the art at the time the invention was made. See Merck & Co. v. Biotech Labs.,
Inc. 874 F.2d 804, 807, 10 USPQ2d 1843, 1846 (Fed. Cir.), cert. denied, 493 U.S. 975
(1989) and In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
Considering Hardy in the light of Section 103 does not cause us to alter our
conclusion that it discloses all of the subject matter required by claim 1, from which
claim 2 depends. Inasmuch as the appellants have not presented arguments directed
to the separate patentability of claim 2, the examiner’s conclusion stands
uncontroverted and we will sustain this rejection.
(4)
Independent claim 8 and dependent claims 9-11 stand rejected as being
unpatentable over Weller in view of Jankowski. As was the case with the other
independent claims, claim 8 requires a front cover “dimensioned to cover a space
between the top step and the ladder top” which, as we concluded above with regard to
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