Appeal 2007-1219
Application 10/798,635
mounting is destroyed. If the Examiner is relying on the metal wires to read on the
structure of the mounts that break away upon a predetermined force, it is not seen
how these wires can also be used to satisfy the limitation of tethers. There is no
disclosure in Norton to support a reading that both welds and wires are used to
install the mesh or chicken wire in the same installation. The expression “tethered”
denotes a flexible member of relatively elongated length. It is only speculation on
the part of the Examiner that the metal wires utilized by Norton have the function
of a tether in the sense that the spanning material is broken away from the
horizontal and vertical pipes yet is still attached thereto by the tethers.
With respect to claim 2 we note that Norton does not fill the vertical pipes
with cement or concrete contrary to the Examiner’s argument. In Norton the pipes
are slipped into embedded inserts or sleeves 60, 70 or 80. Inserts 60, 70 or 80 do
not read on the claimed vertical pipes as they are not exposed above the ground
surface. Also, they are not filled with cement, inasmuch as they function as hollow
sleeves for reception of the vertical pipes.
We also do not affirm the obviousness rejection of claim 4 based as it is on
the disclosure of Norton as the primary reference. Nothing in Venegas can
ameliorate the difficulties we have found in Norton.
CONCLUSION AND ORDER
The rejection of claims 1-3 as lacking novelty over Norton is reversed.
The rejection of claim 4 as obvious over Norton in view of Venegas is
reversed.
REVERSED
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