Appeal 2007-1219
Application 10/798,635
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations
of it, either in the same field or a different one. If a
person of ordinary skill can implement a predictable
variation, §103 likely bars its patentability. For the same
reason, if a technique has been used to improve one
device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the
same way, using the technique is obvious unless its
actual application is beyond his or her skill.
Id. at 1740, 82 USPQ2d at 1396. The operative question in this “functional
approach” is thus “whether the improvement is more than the predictable use of
prior art elements according to their established functions.” Id.
ANALYSIS
We will not sustain the rejections on appeal. As an initial matter, we do not
find that Norton discloses vertical metal pipes each buried below a ground surface
leaving a portion exposed above ground. As noted above, Norton’s vertical pipes
are telescoped into tubular receiving elements placed in concrete base units. The
base units are not installed in the ground either. In fact, they are mobile in the
sense that they are towed from place to place by a tractor.
Secondly, we do not find, that the panel unit, i.e., the materials spanning the
infill area is attached to one or more horizontal or vertical pipes by a tether as
recited in the last limitation of claim 1. We acknowledge the Examiner’s argument
that Norton uses wires to attach the material spanning the infill area to the metal
pipes. However, the expression “tethered” denotes to us that the material spanning
the infill area remains attached to the metal pipes after the mounts attaching the
panel to the pipes is broken away by a predetermined force.
There is no disclosure in Norton that the metal wires holding the panels in
place would continue to attach the panels to the framework once the breakaway
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