Appeal 2007-2121
Application 10/705,083
hollow tubes and receptacles for holding bundles of filaments or bristles as
marker signals.
We are of the opinion Appellant’s contentions do not successfully
rebut the prima facie case. We do not agree with Appellant that the applied
references cannot be combined on the basis of “grade marker stakes” since,
on this record, we determine that a grade stake is any stake that can be
driven into terrain and marked with a signal in any noticeable manner, and
one of ordinary skill in this art would have recognized that the disclosures of
each of the applied references is pertinent to these functions. See, e.g., In re
Kahn, 441 F.3d 977, 985-88, 78 USPQ2d 1329, 1334-337 (Fed. Cir. 2006).
Appellant has not established the metal forming the spikes of Selby and
Clarke affect the structure of the spikes. We determine one of ordinary skill
in this art would have recognized that the slight flare imparted to the tubular
stake by Smith’s driver is similar to the frusto-conical wall region taught by
Clarke and would have modified Smith’s tubular stake with this structural
feature. Indeed, surface 26 of flattening wall member 25 of Smith’s driver
would function with a tubular stake having Clarke’s frusto-conical wall
region. In this respect, Appellant has not established PVC taught by Gipp to
be useful for a pointed end base having a flange for a wide drive surface as
well as a tubular body, would not have been used by one of ordinary skill in
this art to form Clarke’s frusto-conical wall region in modifying Smith’s
tubular stake. Indeed, Smith does not disclose the material to be used for the
stake and driver, and thus, as we pointed out above, this person would have
selected any reasonable material suitable for the purpose in which the stake
and driver are to be used.
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