Appeal No. 2006-1189
Application 10/707,148
to “small toddlers preferably from the age they begin to crawl to approximately 16 months
old.”
In contrast to the examiner’s position, we see claims 6, 9 and 10 as defining appellant’s
invention somewhat broadly, but with a reasonable degree of clarity and particularity when
viewed from the perspective of one of ordinary skill in the art who has read and understood
the claims in light of appellant’s specification and the teachings of the prior art. In our
opinion, such an artisan would understand the barrier used in the method claims on appeal
as being of low profile with very short upwardly extending sections or studs that are
“sufficiently short so that an infant would not be able to grab and detach any of said
upwardly extending sections,” and of such limited height as to permit older children and
adults to step over the barrier (e.g., as having a height of approximately 1 to 1 ½ inches, or
less). Regarding the depth/width of the barrier, we consider that an artisan would have
viewed the barrier as being no wider than a distance equal to one to two steps of an
infant/toddler less than 16 months old (e.g., a width of approximately 12 to 24 inches), which
distance would allow older children and adults to step over and/or reach across the barrier.
Thus, the height and depth/width of the barrier are adequately defined in terms of the infant
attempting to cross it, with the reference to older children and adults merely providing a
further understanding of the barrier dimensions. Logic dictates that the older children and
adults in question are able-bodied, not handicapped or disabled, or so elderly as to be
feeble. Thus, we will not sustain the rejection of claims 6, 9 and 10 under 35 U.S.C. § 112,
second paragraph.
As for the examiner’s rejection of claims 2 through 10 under
6
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