Appeal No. 2005-0516 Page 7
Application No. 10/199,803
In the rejection of claim 1, the examiner (answer, p. 4) ascertained1 that the
Admitted Prior Art lacked "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." The examiner (answer, p. 5) then concluded that
it would have been obvious to one having ordinary skill in the art at the time the
invention was made [to] modify the protective guard of Appellant's Prior Art
admission (figures 1-5) by providing attachment flanges integrally formed with the
elongated tubular member on opposite sides of an elongated opening in order to
provide a means to secure the protective guard to the fencing material as taught
by Eisele.
The appellant argues (brief, p. 5) that the applied prior art does not suggest a
protective guard securable over a top support bar of a fence having both an elongated
tubular member and first and second attachment flanges integrally formed with the
elongated tubular member such that the first and second attachment flanges are
adapted for engaging opposite sides of a fence when the protective guard is secured
atop the top support bar of the fence. The appellant asserts that:
Clearly, Eisele neither discloses nor suggests providing a "protective guard" over
the "top support bar" of a fence. Eisele's "horizontal rail 6" (FIG. 3) is not akin to
Appellant's "protective guard." In fact, Eisele's horizontal rail 6 is similar to
1After the scope and content of the prior art are determined, the differences
between the prior art and the claims at issue are to be ascertained. Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).
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