Appeal 2007-3148
Application 10/638,885
The argued feature of claims 6 and 9, “a volume of sand aggregate
adapted to being filled into said open interior,” merely states the function of
the open interior, namely, holding the sand aggregate. However, we find,
like the Examiner (Answer 4-5), that the drainage channel 50 (i.e., open
interior) is inherently functionally capable of holding sand. Schreiber, 128
F.3d at 1477, 42 USPQ2d at 1433. Our finding is not contrary to Meyers’
disclosure to form a trench drain as argued by Appellants (Br. 5). Rather,
the drainage channel 50 (i.e., open interior) possesses the capability of
holding sand, if only temporarily, to provide added compressive strength to
the drain unit 22 while the concrete is being poured.
We also note that Meyers discloses an inner cavity 140 (i.e., open
interior) that surrounds the end of the pipe 42 and flange 58 (Meyers col. 9,
ll. 50-67, col. 10, ll. 1-7; Figure 11; Figure 2). The inner cavity 140 may be
filled with concrete 142 (i.e., sand aggregate) to provide added compressive
strength (Meyers col. 9, ll. 50-67, col. 10, ll. 1-7). The drain openings 27
where the pipe section 42 connects are not shown in Figure 11, but would be
present in the Figure 11 embodiment because Meyers’ Figure 11 shows a
cross-sectional view of a trench drain unit of Figure 1 that has the drain
openings 27 (Meyers, col. 3, ll. 28-30). Accordingly, the Figure 11
embodiment satisfies the argued feature of Appellants’ claims 6 and 9.
For the above reasons, we affirm the Examiner’s § 102(b) rejection of
claims 6 and 9.
DEPENDENT CLAIM 7
The Examiner stated in the rejection of claim 7 that:
[Meyers discloses] the body exhibiting a specified shape and size but
tapers in the opposite direction than what is claim[ed]; one of ordinary
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