Appeal No. 2006-1189
Application 10/707,148
and knocking them over, and also inherently prevent movement of an infant from one area
(outside the barrier) to another (inside the barrier). Independent claim 6 is not in any
meaningful way different from claim 1 and 5 on appeal.
Appellant’s method, like that of Marshall, addresses a method of creating a barrier on a
floor, wherein the barrier has a low profile, and has a size and top surface design that is
intended to prevent movement across the barrier by creating discomfort to the exposed
skin/flesh of one attempting to cross it. The subjective intent in Marshall is to provide the
barrier so as to prevent dogs from knocking over trash cans located within the barrier area.
However, in performing the method of Marshall, one also performs appellant’s method, and
prevents movement of an infant from one area of a house (outside the barrier) to another
(inside the barrier). The only difference resides in the subjective intent of the user, not in the
steps of the actual method of creating a barrier on a floor to prevent movement from one
area to another. In that regard, we also note that appellant’s own specification [paragraph
0004] indicates that “[m]y method can also be used for small domesticated pets such as
small dogs.”
Thus, we find that the examiner has established a prima facie case of anticipation with
regard to the subject matter of the claims on appeal. For that reason, we will sustain the
rejection of claims 2 through 10 under 35 U.S.C. § 102(b).
In Summary: we have not sustained the rejection of claims 6, 9 and 10 under 35 U.S.C.
§ 112, second paragraph, but have sustained the rejection of claims 2 through 10 under 35
U.S.C. § 102(b). Since at least one rejection of all of the claims on appeal has been
sustained, the decision of the examiner is affirmed.
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