Appeal 2007-2121
Application 10/705,083
adhesive layer 60 and metal strip attachment means 42 which can be retained
in a stake body as an indicator flag such that pulling upward on the filament
bundle removes the bundle along with the stake (Answer 6-7, citing Anglea
col. 3, l. 38, and Fig. 3; see also 12-13). The Examiner concludes it would
have been obvious to one of ordinary skill in the art to modify Smith’s
tubular stake by adding Anglea’s filament bundle end cap as an indicator
flag for easy observation (id. 7; see also 13-14).
In response to Appellant’s contentions, the Examiner contends one of
ordinary skill in the art would have been motivated to combine Smith with
Selby, Clarke, Gipp, Roger, and Anglea for the advantageous features taught
by the references (Answer 8-9). The Examiner contends the preambular
term “grading marker stake” is one of intended use which does not
structurally distinguish the claimed tubular stake and driver combination
from prior art capable of performing that use (id. 9; see also 6).
With respect to claim 1, Appellant contends the common terms
“marker stake or grading stake” are defined in the Specification “as an
ordinary stake with a small stripe of colored fabric tied about the stake
body” and the claimed polymeric material stakes are more durable than
wood (Br. 11). Appellant contends there is no reason to combine the applied
references as they do not involve “grading marker stakes” (id. 12).
Appellant contends the Examiner used hindsight in combining Smith with
Selby and Clarke because the “‘heavy duty’ railroad spikes” of these
references would not provide a stake body of polymeric material (id. 12-13;
see also 9-10). Appellant contends Smith discloses a tubular stake body
without a frusto-conical shaped reinforced top planar exposed end surface as
6
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