Appeal 2007-0522
Application 10/723,817
diameter of the stake is only slightly smaller than the diameter of the pole
and that the bottom of the stake is angled to form a spike for being pushed
into sand or soil. (See also Reply Br. 5.) Further, Appellant contends
(Br. 6-7 and Reply Br. 5) that the design of O'Fearna's stake is contrary to
the claimed pins that are adapted to be inserted into a drilled socket in a pool
deck as resting on a sharp point at the tip would make the pole unstable.
Last, Appellant contends (Br. 7 and Reply Br. 6) that O'Fearna does not
satisfy claim 18 since there is no description of a gate pole. We disagree.
We find no specific definition of "pin," and, therefore, we disagree
with Appellant that the stake of O'Fearna cannot be considered a pin.
Further, if the stake were set in a deep enough socket, the stake would be
held by the walls of the socket, and the angled tip would not significantly
reduce the stability of the pole. As to the diameter of the pin, the claim
requires "a diameter smaller than that on the pole," not a particular diameter.
Thus, as Appellant admits (Br. 6) that the stake in O'Fearna is smaller in
diameter than that of the pole so as to telescope within the pole, the stake
satisfies the diameter limitation for the pin. Regarding the lack of disclosure
of a gate pole, as O'Fearna's pole satisfies all of the structural limitations of
claim 18, and since the preamble (a gate pole) adds no further structure to
the claim (i.e., is not "'necessary to give life, meaning, and vitality' to the
claim." See, e.g., Poly-America, L.P. v. GSE Lining Tech., Inc., 383 F.3d
1303, 1309-10, 72 USPQ2d 1685, 1689 (Fed. Cir. 2004)), O'Fearna
anticipates claim 18. Therefore, we will sustain the anticipation rejection of
claims 18, 19, and 25 over O'Fearna.
Regarding the obviousness rejection of claim 20 over O'Fearna,
Appellant presents the same argument as for claims 18, 19, and 25. As we
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