Appeal No. 2005-0516 Page 4
Application No. 10/199,803
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that would have led one of ordinary skill in the art to
combine the relevant teachings of the references to arrive at the claimed invention. See
In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re
Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Claim 1
We will not sustain the rejection of claim 1 under 35 U.S.C. § 103.
Claim 1 reads as follows:
A protective guard securable over a top support bar of a fence comprising:
an elongated tubular member having first and second ends, an outer
surface, an inner surface defining an interior space for capturing said top support
bar and an elongated opening extending between said inner and outer surfaces
and said first and second ends, wherein said elongated tubular member is
securable over said top support bar of said fence; and
first and second attachment flanges integrally formed with said elongated
tubular member on opposite sides of said elongated opening, wherein said first
and second attachment flanges are adapted for engaging opposite sides of said
fence when said protective guard is secured atop said top support bar of said
fence.
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