Appeal 2007-0009
Application 10/345,461
1 The Examiner rejected claims 1, 2, 4, and 5 under 35 U.S.C. § 103(a)
2 (2004). The Examiner asserts (Answer 2-3) that the grounds of rejection of
3 claims 2, 4, and 5 have not been withdrawn by the Examiner, but are not
4 under review on appeal because these claims have not been presented for
5 review in Appellant's Brief. In the Brief (p. 1) Appellant asserts that claims
6 1, 2, 4, and 5 are appealed. As Appellant only argues the rejection of claim
7 1, we find that dependent claims 2, 4, and 5 are before us for decision on
8 appeal and rise or fall with the rejection of claim 1.
9
10 The prior art relied upon by the Examiner in rejecting the claims on
11 appeal is:
12 Gerstner US 2,800,305 Jul. 23, 1957
13
14 Bright US 3,921,960 Nov. 25, 1975
15
16 Pettit US 4,722,514 Feb. 02, 1988
17
18
19 Claim 1 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
20 Pettit, Gerstner, and Bright.
21 Appellant contends that the claimed subject matter would not have
22 been obvious. More specifically, Appellant contends (Br. 5) that the prior
23 art does not suggest abutting rails (Br. 5-6) and that the ribs 43 on the post
24 cap 37 of Pettit do not constitute a means for locking the post cap. The
25 Examiner contends (Answer 4-5) that Pettit fails to disclose that the posts
26 and rails are made of steel, and Pettit fails to disclose that the rails are in
27 abutting relationship. To make up for these deficiencies of Pettit, the
3
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Last modified: September 9, 2013