Appeal 2007-0522
Application 10/723,817
have found the above-noted arguments unpersuasive, we will sustain the
obviousness rejection of claim 20.
For the obviousness rejection of claims 1 through 17 and 24 over
Sadinsky in view of O'Fearna, Appellant contends (Br. 10-11 and Reply
Br. 6-8) that the references provide no motivation to combine. We agree.
The purpose of O'Fearna's design of a stake telescoped inside a hollow pole
is to be able to raise the screen by telescoping the poles. Raising the fence in
Sadinsky would allow children to get under the fence, thereby defeating the
purpose of keeping unsupervised children out of the pool area. Accordingly,
it would not have been obvious to modify Sadinsky with the pole structure
of O'Fearna, and we cannot sustain the obviousness rejection of claims 1
through 17 and 24.
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new grounds of rejection against Appellant’s claims 1 through 20, 24 and
25. Claims 18 through 20 are rejected under 35 U.S.C. § 102(a) as being
anticipated by APA. Appellant discloses (Specification 1:28-35) poles were
developed with smaller diameter steel pins mounted at the lower end of the
poles such that the pins could be placed in holes in a pool deck that were
smaller than the holes needed for previous poles. Appellant further discloses
(Specification 2:1-7) that a pin was mounted by inserting it in one end of a
plastic pipe which was in turn inserted into the end of the pole, and a screw
held the three pieces together. Thus, claims 18 through 20 are anticipated by
the admitted prior art at pages 1-2 of the Specification.
Claim 25 is rejected under 35 U.S.C. § 103 over APA. The only
difference between APA and claim 25 is the method of attaching the pin to
the plastic insert. Specifically, Appellant discloses attaching the pin, the
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