Ex Parte Carroll

Board of Patent Appeals and Interferences

Aug 23, 2007

10705083 (B.P.A.I. Aug. 23, 2007)

The opinion in support of the decision being entered today
is not binding precedent of the Board

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte WILLARD D. CARROLL, JR.
______________

Appeal 2007-2121
Application 10/705,083
Technology Center 1700
_______________

Decided: August 23, 2007
_______________

Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
CATHERINE Q. TIMM, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicant appeals to the Board from the decision of the Primary
Examiner finally rejecting claims 1, 3 through 6, 9, and 14 through 17 in the
Office Action mailed December 21, 2005. 35 U.S.C. §§ 6 and 134(a)
(2002); 37 C.F.R. § 41.31(a) (2005).
We affirm the decision of the Primary Examiner.
Claims 1 and 9 illustrate Appellant’s invention of an integrated driver
system, and is representative of the claims on appeal:
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1. In combination, a grading marker stake with an integral impact
head and a driver which, together with the stake, form an integral point
driver system, comprising:
a stake body formed in one piece of a lightweight synthetic polymeric
material, the stake body having a length, a bottom end which terminates in a
bottom end opening, an intermediate sidewall portion and a top end which
terminates in a top end opening;
a driver having a stepped cylindrical body including a drive shoulder
located along a length thereof between a drive end and an oppositely
arranged pointed end of the body;
wherein the stake body has a cylindrical sidewall portion which is
joined to the top end by a performed frusto-conical [sic] wall region which
also defines a top, planar exposed end surface, and wherein the planar
exposed end surface has an outer periphery, the outer periphery being of a
larger relative diameter than the diameter of the cylindrical sidewall portion
of the stake body, the top, planar exposed surface being selectively sized to
receive the driver shoulder of the pointed shaft driver for driving the stake
into the surrounding terrain;
wherein the top, planar exposed surface comprises a reinforced upper
end of the stake body, also integrally formed of the synthetic polymeric
material, for receiving impact forces from the driver; and
wherein the stake body has a hollow interior bore which
communicates the top and bottom end openings, the interior bore being sized
to closely receive a portion of the cylindrical body of the driver with the
driver pointed end extending at least slightly from the bottom end of the
stake body, whereby the stake can be retained frictionally on the driver to
allow a user to drive a stake into the surrounding terrain without the
necessity of bending.
9. In combination, a grading marker stake with an integral impact
head, an end cap, and a driver which, together with the stake, form having an
integral point driver system, comprising:
a stake body formed in one piece of a lightweight synthetic polymeric
material, the stake body having a bottom end which terminates in a bottom
end opening, an intermediate sidewall portion and a top end which
terminates in a top end opening;
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a driver having a stepped cylindrical body including a drive shoulder
located along a length thereof between a drive end and an oppositely
arranged pointed end of the body;
wherein the stake body has a cylindrical sidewall portion which is
joined to the top end by a performed frusto-conical [sic] wall region which
also defines a top, planar exposed end surface, and wherein the planar
exposed end surface has an outer periphery, the outer periphery being of a
larger relative diameter than the diameter of the cylindrical sidewall portion
of the stake body, the top, planar exposed surface being selectively sized to
receive the driver shoulder of the pointed shaft driver for driving the stake
into the surrounding terrain;
wherein the top, planar exposed surface comprises a reinforced upper
end of the stake body, also integrally formed of the synthetic polymeric
material, for receiving impact forces from the driver;
wherein the stake body has a hollow interior bore which
communicates the top and bottom end openings, the interior bore being sized
to closely receive a portion of the cylindrical body of the driver with the
driver pointed end extending at least slightly from the bottom end of the
stake body, whereby the stake can be retained frictionally on the driver to
allow a user to drive a stake into the surroundings terrain without the
necessity of bending; and
wherein the top end opening of the stake body is also selectively sized
to receive an end cap of a filament bundle having associated stiff, resilient
strands, whereby the end cap is frictionally retained in the top end opening
after the driver has been used to drive the stake into the surrounding terrain,
whereby the filament bundle of stiff, resilient strands forms an indicator flag
when the end cap is seated within the top end opening of the stake body.
The Examiner relies on the evidence in these references:
Clarke US 2,049,105 Jul. 28, 1936
Selby US 2,649,009 Aug. 18, 1953
Gipp US 5,215,033 Jun. 1, 1993
Smith US 5,377,768 Jan. 3, 1995
Roger US 5,449,253 Sep. 12, 1995
Anglea US 6,142,882 Nov. 7, 2000
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Appellant requests review of the grounds of rejection under 35 U.S.C.
§ 103(a) (Br. 7): claims 1, 6, and 14 as being unpatentable over Smith in
view of Selby, Clarke, Gipp, and Roger (Answer 3-6); and claims 3 through
5, 9, and 15 through 17 as being unpatentable over Smith in view of Selby,
Clarke, Gipp and Roger as applied to claims 1, 6 and 14, further in view of
Angela (id. 6-7).1
Appellant argues independent claims 1 and 14 as representative claims
in the first ground of rejection and independent claim 9 as representative of
the claims in the second ground of rejection (Br. in entirety). Thus, we
decide this appeal based on claims 1, 9, and 14.
37 C.F.R. § 41.37(c)(1)(vii) (2005).
With respect to claims 1 and 14, the Examiner finds Smith discloses
tubular stake 14 and pointed shaft driver 20, wherein the hollow stake body
has top and bottom end openings and receives shaft driver 20 which is used
to drive the stake into terrain (Answer 3-4, citing Smith Figs. 1-3). The
Examiner finds Smith’s tubular stake does not have a preformed frusto-
conical shaped reinforced top planar exposed end surface for receiving the
shaft driver; Selby discloses a drive spike 10 reinforced with a widened top
end surface 12 to drive the spike into place; and Clarke discloses a
compression screw spike 10 with a preformed frusto-conical wall region 8
for greater strength against lateral action (id. 4-5, citing Selby col. 3,
ll. 60-61, and Fig. 1; and Clarke page 2, left col., ll. 1-2, and Fig. 1). The

1 The Answer includes a ground of rejection of claim 12 (Answer 7-8) and
the Brief requests review of this ground (Br. 7). However, claim 12 was
canceled in the Amendment filed June 1, 2005.
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Examiner concludes it would have been obvious to one of ordinary skill in
the art to modify Smith’s tubular stake with Selby’s reinforced widened top
end surface and Clarke’s frusto-conical wall region to better receive blows
from the shaft driver with greater strength against lateral action (id.; see also
10-11).
The Examiner finds Smith’s stake body is not disclosed to be formed
of a lightweight synthetic polymeric material, and Gipp discloses hollow
body 22 of flexible boundary marker 10 is made of PVC tubing (Answer 5,
citing Gipp col. 3, ll. 61-63; see also Answer 11). The Examiner concludes
it would have been obvious to one of ordinary skill in this art to form
Smith’s tubular stake from PVC for durability as taught by Gipp (Answer 5).
The Examiner finds the pointed end of Smith’s stake driver does not extend
below the bottom end opening of the tubular stake, and Roger discloses
driving tube 1 into the ground by hammering with driver 3 having pointed
end 6 extending past the tube bottom opening to penetrate the surface (id.,
citing Roger col. 3, ll. 12-13, and Fig. 2; see also 11-12). The Examiner
concludes it would have been obvious to one of ordinary skill in the art to
modify Smith’s shaft driver by extending the pointed end past the stake
bottom end opening to penetrate the surface the stake is driven into as taught
by Roger (id. 5-6).
With respect to claim 9, the Examiner contends the combined
teachings of Smith, Selby, Clarke, Gipp, and Roger do not disclose an end
cap having a filament bundle as an indicator flag which can be frictionally
retained in the top end opening of Smith’s tubular stake, and Anglea
discloses an end cap of a filament bundle 32 with an end cap formed by
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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
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Application 10/705,083
claimed, with Smith’s driver “used to turn over a lip (32 in Figure 4) on the
top of the tube” and “called a ‘flattening wall member 25’” by Smith (Br.
14; see also 9).
Appellant contends the driver for a tube of Roger “works on the inside
of the tube diameter, not on the top of the tube” as claimed, as the
hydraulically driven tool exerts a driving force “upon an internal ‘hammer
bearing surface’” 4 of the tube as seen in Fig. 3, and not a hand operated
device as claimed (Br. 15 and 15-16; see also 10). Appellant contends
Smith drives a stake, which is not a marker stake, through a timber into the
ground; discloses stake and driver are formed of metal; does not disclose the
pointed end of the driver extends from the bottom end opening; and does not
initially hold the stake body on the driver (id. 12). Appellant contends Gipp
discloses solid bottom stake member 12 in Figure 1 that does not have a
hollow interior bore for receiving a driver tool as claimed, and thus does not
provide teachings of a driver tool as claimed (Br. 12; see also 10).
With respect to claim 9, Appellant contends Anglea does not teach the
claimed stake and driver combination with respect to Smith as Angela’s end
cap is not installed into a tubular stake driven into terrain with a driver as
claimed, and is permanently fitted into bore 24 while, as claimed, the
filament bundle could be removed for reuse (Br. 16-17; see also 10). With
respect to claim 14, Appellant contends the applied references do not teach a
tubular stake and a driver therefor as claimed (id. 17-18).
The issues are whether the Examiner erred in concluding it would
have been prima facie obvious to one of ordinary skill in the art to combine
the teachings of Smith, Selby, Clarke, Gipp, and Roger and further with
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Application 10/705,083
Anglea and thence modify the teaching of Smith by the teachings of these
references to arrive at the claimed invention.
The plain language of claims 1 and 9, with reference to Specification
Figs. 1, 2, 6, and 7, specifies the combination of an open-ended, hollow bore
tubular stake 31, comprising at least, among other things, a preformed
frusto-conical shaped reinforced top planar exposed end surface 39,46,48,50,
and shaft driver 52 which has, among other things, driver shoulder 54 and
extends through hollow bore 53 and further slightly from bottom end
opening 36 of the tubular stake, wherein top, planar end surface 48 of the
tubular stake receives drive shoulder 54 for driving the stake into the
surrounding terrain without the necessity of the user bending (see
Specification 8-10). Both the tubular stake and the driver are formed from a
lightweight synthetic which can be, among other things, “any suitable plastic
which can be injection molded” (Specification 8:5-6). Claim 9 adds any
manner of end cap of a filament bundle which can be frictionally retained in
the top end opening after the stake has been driven into the terrain, forming
any manner of “indicator flag” which can be used as any manner of “grade
marker” as specified in the preamble. Thus, the end cap bundle of filaments
can be held together in any manner and can be of any shape which fits in the
top end opening of the tubular stake (see Specification, e.g., 9:4-15). The
plain language of claim 14 specifies a method comprising the steps of,
among other things, providing a tubular stake and driver combination as also
specified in claims 1 and 9, and using the same with a hand tool to drive the
stake body into terrain.
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We find no specific definition of the preambular term “grade marker”
in the written description in the Specification, and the disclosure of a generic
“marker stake” includes “a variety of applications such as tent stakes, as trail
or backpack marking devices, as markers for sports fields, as roadside
markers, etc.” (Specification 7:4-14). Indeed, Appellant describes prior art
“grade markers” as including stakes with “a brightly painted top,” an
attached “flag,” and “a bundle of brightly colored, polymer filaments”
attached by a metal band or clip or by a tape wrap, and similarly describes
the claimed stakes (id. 1-2 and 9:12-15). Thus, the term “grade marker”
requires only that the tubular stake must be marked with some kind of signal
in any noticeable manner. Furthermore, the transitional term “comprising”
opens these claims to include stakes and drivers having additional features as
well as methods of driving the same having additional steps than specifically
required. See, e.g., Vehicular Technologies Corp. v.
Titan Wheel Int’l, Inc., 212 F.3d 1377, 1383, 54 USPQ2d 1841, 1845 (Fed.
Cir. 2000); Genentech, Inc. v. Chiron Corp., 112 F.3d 4954, 501,
42 USPQ2d 1608, 1613 (Fed. Cir. 1997); In re Baxter, 656 F.2d 679, 686
210 USPQ 795, 802 (CCPA 1981).
We agree with the Examiner’s findings of fact, to which we add the
following. We find Smith would have additionally disclosed to one of
ordinary skill in this art a tool to transmit a driving force to, e.g., spikes and
stakes, including a hollow tubular stake which can be inserted into a
predrilled hole in a landscape timber and driven into the ground (Smith, e.g.,
col. 1, ll. 9-12, col. 2, ll. 10-18, and Figs. 1 and 4). The tool has pointed
lower shaft 22 for insertion into tubular stake 14; upper head portion 20 for
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Application 10/705,083
receiving and conveying an impact; a contacting and flaring portion 24
which contacts the upper edge of the tubular stake, flaring its upper edge
under force to the extent permitted by flare limiting stop 32; and flattening
wall member 25 with surface 26 for compressing material 16 through which
stake 14 is driven (id., col. 1, ll. 23-39, col. 2, l. 18, to col. 3, l. 2, and Figs.
1-4). We find no disclosure in Smith specifying the material used to form
the tubular stake and the driver. Smith discloses a method for using the
combination of tubular stake and driver tool by applying a striking force to
the head portion of the tool (col. 3, ll. 3-27, and Figs. 1-43). We determine
one of ordinary skill in this art would have reasonably inferred from Smith
that any suitable material can be used for the tubular stake and the driver,
and the striking force can be applied with a hand tool by a user without the
necessity for bending.2
We find Gipp would have additionally disclosed to one of ordinary
skill in this art a boundary marker which has base 10 with flange 16 which
provides “a wider drive surface” and pointed surface 18 for easy surface
penetration; post 22 attached to base 10 via spring 20; and flag 30
comprising a bundle of elongated plastic filaments 32 tightly bunched at one
end and either affixed to post 22 or forcefully inserted into top end opening
22b of axial bore 24b of post 22 of flexible boundary marker 10 to be

2 It is well settled that a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in this art would have
reasonably been expected to draw therefrom, see In re Fritch, 972 F.2d
1260, 1264-265, 23 USPQ2d 1780, 1782-783 (Fed. Cir. 1992); In re Preda,
401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968), presuming skill on
the part of this person. In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774
(Fed. Cir. 1985).
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frictionally retained therein, or can be adhesively held in bore 24b (Gipp,
col. 2, ll. 1-12, col. 2, l. 60, to col. 3, l. 60, and Fig. 1). Gipp discloses that
base 10 is PVC pipe and post 22 is PVC tubing (id., col. 3, ll. 61-66).
We find Roger would have additionally disclosed to one of ordinary
skill in this art that the apparatus for driving tube 1 into the ground by a
hammer pressed against pile-driving head 2 bearing against a bearing surface
such as annular collar 4 formed inside the bottom of tube 1, wherein head 2
is fitted with leading penetration point 6 (Roger, e.g., Abstract, col. 2, ll. 4-
19, col. 2, l. 66, to col. 3, l. 16, and Fig. 1).
We find Anglea would have additionally disclosed to one of ordinary
skill in this art body 12 of a material which can be deformed to fit into
opening 14 of hollow receptacle 16 in an anchor of a base employed on a
playing field to mark the location of the base, wherein body 12 is frictionally
retained in receptacle 16 and includes a flexible indicator 32 made of bristle-
like members 34 (Anglea, e.g., Abstract, and col. 2, ll. 5-41, and col. 2, l. 66,
to col. 3, l. 53, and Figs. 1-2). Anglea discloses that indicator 32 can be
secured to body 12 by clamps and adhesive (id., col. 3,
l. 56, to col. 3, l. 11).
We determine the combined teachings of Smith, Selby, Clarke, Gipp,
and Roger and further with Anglea, the scope of which we determined
above, provide convincing evidence supporting the Examiner’s case that the
claimed invention encompassed by claims 1, 9, and 14, as we interpreted
these claims above, would have been prima facie obviousness to one of
ordinary skill in the marker arts involving terrain familiar with the use of
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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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We are also unconvinced by Appellant’s contentions that one of
ordinary skill in this art would not have extended the pointed end of shaft 22
of Smith’s driver slightly from the bottom end opening of Smith’s tubular
stake to provide penetration into the ground. Indeed, we notice and
Appellant acknowledges in the Specification (Specification 7:7-14 and Fig.
8) that stakes are well known to generally have a pointed surface for
penetration as illustrated by Gipp’s base. While one of ordinary skill in this
art would have known from Smith and Roger that a tube can be driven into
ground, this person would have recognized that the assistance of a driver
with a penetrating point as shown by Roger would provide penetration
similar to a penetration point on a common pointed stake. Appellant has not
established that the location of the drive surface on the tubular stake to be
struck by the driver or the type of hammer used as the drive results in the
capability of the penetrating point to penetrate the ground in a different
manner than if the drive surface was at the top end of the tubular stake.
We determine one of ordinary skill in the art would have used
Anglea’s end cap having a filament bundle as a marker signal in the top end
opening of Smith’s tubular stake, frictionally held in place as shown by
Anglea. We find no limitation in claim 9 requiring the end cap must be
capable of removal from the stake as Appellant argues. See In re Self,
671 F.2d 1344, 1348-349, 213 USPQ 1, 5 (CCPA 1982). We further
determine that Gipp also would have suggested the use of an end cap of a
filament bundle as a marker signal in Smith’s tubular stake to this person.
With respect to claim 14, one of ordinary skill in this art practicing the use
of Smith’s tubular stake and driver would have used a hand tool to drive the
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stake via the driver into the ground and would further have practiced this
method with the stake and driver of Smith modified as suggested by the
other applied references.
Accordingly, we are of the opinion that prima facie one of ordinary
skill in this art routinely following the combined teachings of Smith, Selby,
Clarke, Gipp, and Roger and further with Anglea would have reasonably
arrived at the claimed invention encompassed by claims 1, 9, and 14,
including all of the limitations thereof arranged as required therein, without
recourse to Appellant’s Specification. See, e.g., KSR Int’l Co. v. Teleflex,
Inc., 127 S.Ct. 1727, 1739, 82 USPQ2d 1385, 1395 (2007) (a patent
claiming a combination of elements known in the prior art is obvious if the
improvement is no more than the predictable use of the prior art elements
according to their established functions); Kahn, 441 F.3d at 985-88,
78 USPQ2d at 1334-337; Pro-Mold & Tool Co. v. Great lakes Plastics Inc.,
75 F.3d 1568, 1573, 37 USPQ 1626, 1629-630 (Fed. Cir. 1996) (“In this
case, the reason to combine [the references] arose from the very nature of the
subject matter involved, the size of the card intended to be enclosed.”); In re
Gorman, 933 F.2d 982, 986-87, 18 USPQ2d 1885, 1888-889 (Fed. Cir.
1991) (“The extent to which such suggestion [to select elements of various
teachings in order to form the claimed invention] must be explicit in, or may
be fairly inferred from, the references, is decided on the facts of each case, in
light of the prior art and its relationship to the applicant’s invention.”); In
re Dow Chem. Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir.
1988);3 In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981);4

3 The consistent criterion for determination of obviousness is
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see also In re O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1680-81
(Fed. Cir. 1988) (“For obviousness under § 103, all that is required is a
reasonable expectation of success.” (citations omitted)).
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Smith, Selby, Clarke, Gipp, and Roger, and further
with Anglea, with Appellant’s countervailing evidence of and argument for
nonobviousness and conclude that the claimed invention encompassed by
appealed claims 1, 3 through 6, 9, and 14 through 17 would have been
obvious as a matter of law under 35 U.S.C. § 103(a).
The Primary Examiner’s decision is affirmed.

whether the prior art would have suggested to one of ordinary
skill in the art that [the claimed process] should be carried out
and would have a reasonable likelihood of success, viewed in
light of the prior art. [Citations omitted] Both the suggestion
and the expectation of success must be founded in the prior art,
not in the applicant’s disclosure.
Dow Chem., 837 F.2d at 473, 5 USPQ2d at 1531.
4 The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill
in the art.
Keller, 642 F.2d at 425, 208 USPQ at 881.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007).
AFFIRMED

cam

Whitaker, Chalk, Swindle & Sawyer, LLP
3500 City Center Tower II
301 Commerce Street
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