Appeal No. 2006-1189
Application 10/707,148
35 U.S.C. § 102(b) as being anticipated by Marshall, we agree with the examiner that one
performing the method of creating a barrier on a floor or surface as in Marshall would
inherently also perform appellant’s method set forth in the claims on appeal of preventing
movement of an infant from one area of a house to another, notwithstanding that Marshall
does not specifically mention use of the barrier, e.g., that seen in Figure 9, for precluding an
infant from moving from outside the barrier (one area of a house) to the interior of the barrier
(another area).
Looking to independent claims 1 and 5 on appeal as being representative, we note that
Marshall teaches a method of creating a barrier on a floor comprising the steps of: providing
a sheeting material having a low profile top surface design, which design includes a plurality
of upwardly extending sections or spikes (2) that have a limited height (col. 4, lines 12-14)
which permits older children and adults to step over the barrier. As noted in column 3, lines
66-67, the sheeting material and spikes of Marshall are formed of a semi-rigid plastic or
rubber-based material and thus would provide temporary discomfort when a dog or infant
touches and applies its own weight to a portion of the sheeting material, without puncturing
the skin of the dog or an infant (col. 5, lines 59-63). The sheeting material is sized for the
portion of a floor or surface upon which is to be placed and is sized so as to allow older
children and adults to step over the barrier (see, col. 4, lines 10-12), while still providing
sufficient depth/width (e.g., 24 inches) to discourage an infant from attempting to cross. The
final step of the method in Marshall is to place the sheeting material upon a floor or surface
in a substantially desired location (e.g., around trash cans as seen in Figure 9 thereof),
thereby creating a barrier that would prevent a dog from closely approaching the trash cans
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