Ex Parte Gibbs

Board of Patent Appeals and Interferences

Aug 20, 2009

10869371 (B.P.A.I. Aug. 20, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte EDWARD L. GIBBS
____________

Appeal 2008-005739
Application 10/869,371
Technology Center 2100
____________

Decided: August 20, 2009
____________

Before WILLIAM F. PATE, III, STEFAN STAICOVICI, and
KEN B. BARRETT, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Edward L. Gibbs (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s decision rejecting claims 1-10 and 54-113. Claims 11-53 have
been canceled. We have jurisdiction over this appeal under 35 U.S.C. § 6
(2002).
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THE INVENTION
The Appellant’s invention is drawn toward a post 12 having a first
flange section 32, a second flange section 34, and a flat web section 36
disposed between the flange sections 32, 34 and formed from two abutting
planar sections 38, 40 that define a double walled structure. Spec. 7, ll. 9-11
and 19-20 and fig. 3. The post 12 is formed from a continuous strip of
material such that lateral edges 42, 44 are folded into an overlapping and
abutting configuration. Spec. 7, ll. 11-13 and fig. 3.
Claims 1, 78, and 96 are representative of the claimed invention and
read as follows:
1. A post having opposed ends, the post adapted for
incorporation into a fence which extends over a ground
surface and is supported by one or more underground
substrates, comprising:

a first flange section;

a second flange section having the same cross-sectional
profile as the first flange section; and

a flat web section disposed between the first and second
flange sections, the web section formed from two
abutting planar sections which define a double-walled
structure, the first and second flange sections situated on
opposite sides of a plane extending through a medial
portion of the web section in orthogonal relationship
thereto; in which the post is adapted for installation, at
one of its ends, within an underground substrate.

78. A post comprising:

a first flange section;
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a second flange section; and

a planar web section disposed between the first and
second flange sections and having opposite sides, the
web section having a cable passageway extending
therethrough in orthogonal relationship to the plane of
the web section, the cable passageway sized to clearingly
receive a cable therethrough, so that the cable may
extend from one side to the other.

96. A post comprising:

a first flange section;

a second flange section; and

a planar web section the web section disposed between
the first and second flange sections;

in which the flange and web sections comprise regions of
a continuous strip of material, the strip having two, and
only two, lateral edge portions, the lateral edge portions
situated in adjacent and overlapping relationship.

THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Maxcy US 3,879,017 Apr. 22, 1975
Kennedy US 4,964,618 Oct. 23, 1990
Charbaut US 5,275,382 Jan. 4, 1994
Edgman US 5,702,090 Dec. 30, 1997

The following rejections are before us for review:
The Examiner rejected claims 78-95 under 35 U.S.C. § 102(b) as
anticipated by Maxcy.
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The Examiner rejected claims 1-10 and 54-77 under 35 U.S.C. §
103(a) as unpatentable over Edgman and Charbaut.
The Examiner rejected claims 96-113 under 35 U.S.C. § 103(a) as
unpatentable over Charbaut and Edgman.

THE ISSUES
1. Has the Appellant demonstrated that the Examiner erred in
determining that the post of Maxcy includes: (a) a first flange section and a
second flange section and (b) a “cable passageway” that is “sized to
clearingly receive a cable therethrough,” as required by independent claim
78?
2. Has the Appellant demonstrated that the Examiner erred in
determining that Maxcy teaches a post having overlapping flange sections?
3. Has the Appellant demonstrated that the Examiner erred in
determining that it would have been obvious for a person of ordinary skill in
the art to have modified the separated web structure of the post of Edgman
to include the flat (abutting double walled) web structure of the post of
Charbaut?
4. Has the Appellant demonstrated that the Examiner erred in
determining that it would have been obvious for a person of ordinary skill in
the art to have modified the post of Charbaut to include adjacent and
overlapping lateral edges as taught by Kennedy?

SUMMARY OF DECISION
We AFFIRM-IN-PART.

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FINDINGS OF FACT
The following enumerated findings of facts (FF) are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F. 2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Maxcy teaches an intermediate post P’ connected to splines S
using a single bolt fastener 32. Maxcy, col. 4, ll. 28-31 and fig.
5.
2. Maxcy further teaches that individual bolt fasteners 22 may be
used as an alternative to the single bolt fastener 32. Maxcy, col.
4, ll. 23-26 and fig. 4.
3. When using individual bolt fasteners 22, the post P of Maxcy
has a longitudinal (lengthwise) slot 14 in order to permit access
to the nut 23. Maxcy, figs. 3 and 4.
4. The intermediate post P’ of Maxcy further includes a hole 36 (a
passageway) in the internal web 35. Maxcy, fig. 5.
5. Maxcy further teaches a clearance between bolt 32 and
passageway 36. Maxcy, fig. 5.
6. The cross-hatching of the web 35 in Figure 5 of Maxcy is in the
same direction. Hence, web 35 constitutes a single structure,
namely, a single-walled structure.
7. Maxcy specifically discloses that the flanges 65 of the cap C are
used to snap fit to rails 66. Maxcy, col. 6, ll. 32-34 and fig. 9.
8. Edgman discloses a molded or extruded plastic post 16 having a
first flange section 118, a second flange section 120, and a
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separated web section. Edgman, col. 2, ll. 52-60; col. 5, ll. 4-
11; and fig. 5.
9. Charbaut discloses a metallic fence post having a first flange
section 11, a second flange section 22, a planar (flat) web
section 21 (abutted double walled structure), and hooks 25.
Charbaut, col. 2, ll. 27-32 and 35-37 and fig. 1.
10. The fence post of Charbaut is made from a single piece of metal
sheet. Charbaut, col. 2, ll. 44-47.
11. Further, Charbaut discloses hooks 25 that are used to engage
the wires T of panels such as to orient the panels D according to
changes in direction of a property boundary. Charbaut, col. 3,
ll. 17-22 and fig. 7.
12. Kennedy discloses a post 58 made from a single piece of sheet
metal such that end 102 of panel 112 engages edge 104 of panel
57 to form seam 106. Kennedy, col. 7, ll. 50-55 and fig. 11.

PRINCIPLES OF LAW
Claim Construction
When construing claim terminology in the United States Patent and
Trademark Office, claims are to be given their broadest reasonable
interpretation consistent with the specification, reading claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir.
2004).

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Anticipation
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros, Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987).
Obviousness
"Section 103 forbids issuance of a patent when 'the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 407 ("While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.")
The Supreme Court stated that in cases involving more than the
simple substitution of one known element for another or the mere
application of a known technique to a piece of prior art ready for the
improvement, it will be necessary to "determine whether there was an
apparent reason to combine the known elements in the fashion claimed by
the patent at issue." Id. at 1740-41. The Court noted that "[t]o facilitate
review, this analysis should be made explicit." Id. (citing In re Kahn, 441
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F.3d 977, 988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds
cannot be sustained by mere conclusory statements; instead, there must be
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness")).

OPINION
Issue (1)(a)
Claims 78 requires a “first flange section” and a “second flange
section.” Using the dictionary, the Appellant defines the term “flange” as:
A protruding rim, edge, rib, or collar, as on a
wheel or a pipe shaft, used to strengthen an object,
hold it in place, or attach it to another object.
App. Br. 5-6. Emphasis added.
Based on the dictionary definition of the term “flange,” the Appellant then
argues that:
The opposed upper and lower faces of the Maxcy
post P' shown in Figure 5 cannot fairly be
characterized as flange sections, because they are
merely integral walls of a tube having a square
cross-section without projecting rims or ribs.

App. Br. 6. Emphasis added.
In response, although the Examiner agrees with the Appellant’s
definition of the term “flange,” the Examiner points to Figure 5 of Maxcy to
show that the post P’ includes a first flange section M1, a second flange
section M2, and a planar web section 35 disposed between the first and
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second flange sections M1, M2. Suppl. Ans. 4 and 13.1 The Examiner
further explains that:
As can be seen in Figures 5 and 6 of Maxcy, a
spline (S) can be run vertically along the entire
length of said posts (P') thus revealing the
longitudinal slots (14) of the entire length of said
post therefore separating the protruding sides
(flanges M1 and M2) (column 4, lines 23-43 and
column 5, lines 8-35).
Suppl. Ans. 13.
Although we appreciate that Figure 5 of Maxcy does not clearly
reveal that the post P’ includes a slot 14, a first flange portion, or a second
flange portion, nonetheless, we agree with the Examiner that portions M1
and M2 (see Suppl. Ans. 13) constitute flanges as defined by the Appellant.
As noted above, Figure 5 of Maxcy shows the connection between splines S
and intermediate post P’ using a single bolt fastener 32. FF 1. However,
Maxcy further teaches that individual bolt fasteners 22 may be used as an
alternative to the single bolt fastener 32. FF 2. As can be seen in Figure 4
of Maxcy, when using individual bolt fasteners 22 a longitudinal
(lengthwise) slot 14 is required in order to permit access to the nut 23. FF 3.
As such, in order to be able to fasten splines S and intermediate post P’
using individual bolt fasteners 22, we find that the intermediate post P’ must
likewise include a slot 14 to permit access of the nut 23 during assembly, as
shown below in a 3-dimensional representation of the intermediate post P’.

1 A Supplemental Examiner’s Answer was mailed on November 28,
2007. It appears to us that the Supplemental Examiner’s Answer is a
substantial duplicate of the Examiner’s Answer mailed on June 28, 2007.
Throughout this decision we will only refer to the Supplemental Examiner’s
Answer.
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A Figure is shown below:

The Figure depicts a 3-dimensional representation of the intermediate
post P’ of Maxcy.
Therefore, after viewing the Figure shown above we find that a person
of ordinary skill in the art would have readily appreciated that portions M1
and M2 of the intermediate post P’ of Maxcy constitute protruding edges,
which according to the Appellant’s definition of the term “flange,”
constitute a first flange portion and a second flange portion, respectively.
Hence, we find that Maxcy teaches a post P’ having a “first flange section”
and a “second flange section,” as required by independent claim 78.

Issue (1)(b)
The Appellant further argues that Maxcy does not disclose “any
unobstructed passageway through the web 35 that is capable of receiving a
cable therethrough.” App. Br. 5. Specifically, the Appellant argues that,
“the slot 14 is not a feature of [the] Maxcy post P’.” App. Br. 4. Further,
the Appellant notes that because the bolt 32 is inserted through the hole 36
in the internal web 35, the hole 36 of the intermediate post P’ of Maxcy does
M2
M1
14
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not constitute a “cable passageway” that is “sized to clearingly receive a
cable therethrough.” App. Br. 5. In response, the Examiner takes the
position that because the hole 36 is used to pass a bolt 32 between the ends
of the post P’, the hole 36 constitutes a “clear unobstructed passageway that
is capable of receiving a cable therethrough.” Suppl. Ans. 13.
As shown above, in order to be able to fasten splines S to the
intermediate post P’ of Maxcy using individual bolt fasteners 22, the
intermediate post P’ includes a slot 14 to permit access of the nut 23 during
assembly. Further, we note that the post of Maxcy includes a hole 36 (a
passageway) in the internal web 35. FF 4. Although Maxcy does not name
the hole 36 a cable passageway, we find that the hole 36 of Maxcy,
nonetheless, forms a passageway through the internal web 35 that connects
the slots 14. A reference which describes the subject matter of a claim
anticipates the claim even if the reference does not use the same terminology
used in the claim. See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990)
(stating that anticipation does not require an ipsissimus verbis test).
Furthermore, we note that claim 78 does not require a cable. At most, claim
78 requires that the “cable passageway” is capable of receiving a cable. We
find that hole 36 is capable of (clearingly receiving) allowing a capable to
pass therethrough from one end of the post P’ to the other. Lastly we note
that Figure 5 of Maxcy clearly shows a clearance between bolt 32 and
passageway 36. FF 5. As such, we find that Maxcy teaches a “cable
passageway” that is “sized to clearingly receive a cable therethrough,” as
required by independent claim 78.
In conclusion, for the foregoing reasons, the rejection of claim 78
under 35 U.S.C. § 102(b) as anticipated by Maxcy is sustained. Dependent
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claims 88, 90, 91, and 94 are not argued separately from independent claim
78. As such the rejection of claims 88, 90, 91, and 94 under 35 U.S.C.
§ 102(b) as anticipated by Maxcy is likewise sustained.
With respect to claim 83, the Appellant argues that the reinforcing
web 35 of the post P’ of Maxcy does not have a “double-walled structure.”
App. Br. 7. According to the Examiner, because the web section 35 has a
“left-sided inner-wall section surface and a right-sided inner wall section,”
the web 35 of Maxcy forms a “double-walled structure.” Suppl. Ans. 14.
We disagree with the Examiner’s position. As noted by the direction of the
cross-hatching in Figure 5 of Maxcy, it is clear that web 35 constitutes a
single structure, namely, a single-walled structure. FF 6. Therefore, the
rejection of claim 83 under 35 U.S.C. § 102(b) as anticipated by Maxcy
cannot be sustained.
Regarding claims 84 and 85, the Examiner refers once more to the
web section 35. Id. However, claims 84 and 85 are drawn to the “flange
section” and not the “web section,” as the Examiner suggests. See also App.
Br. 7. Nonetheless, because the cross-hatching in Figure 5 of Maxcy is in
the same direction it is clear that flange sections M1 and M2 and the web 35
constitute a single structure, that is, a single-walled structure. Accordingly,
the rejection of claims 84 and 85 under 35 U.S.C. § 102(b) as anticipated by
Maxcy cannot be sustained.
With respect to claims 86 and 87, the Examiner points to Figure 7 of
Maxcy to show an intermediate corner post P” that has a triangular shape.
Suppl. Ans. 14. However, we note that the post P’’ is a different
embodiment than post P’ and does not include a “cable passageway,” as
required by claim 78 from which claim 86 depends. Accordingly, the
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rejection of claims 86 and 87 under 35 U.S.C. § 102(b) as anticipated by
Maxcy cannot be sustained.
Claim 89 requires that the uppermost vertical rail be located at a
vertical position below the upper end of the post. The Examiner takes the
position that the cap C of Maxcy constitutes the upper end of the post, and as
such, the rails R and R’ of Maxcy are located below the upper end of the
post. Suppl. Ans. 14. See also Maxcy, figs. 1, 3, and 9. However, as noted
above Maxcy specifically discloses that the flanges 65 of the cap C are used
to snap fit to rails 66. FF 7. Hence, we agree with the Appellant that the top
rail 66 “extends above the upper end of the fence post.” Reply Br. 9. As
such, Macxy does not teach that the uppermost vertical rail is located at a
vertical position below the upper end of the post, as required by claim 89.
Accordingly, the rejection of claim 89 under 35 U.S.C. § 102(b) as
anticipated by Maxcy cannot be sustained.
Lastly, with respect to claims 92, 93, and 95, we note that these claims
require a “cable adapted to strengthen an assembled fence.” The Examiner
takes the position that because the claims use the phrase “adapted to,” the
limitation of a “cable” is a functional limitation. Suppl. Ans. 15. Although
we agree with the Examiner that the phrase “adapted to” implies a capability
of the cable to strengthen the fence, nonetheless, we find that claims 92, 93,
and 95 positively recite a “cable.” However, we could not find any portion
of Maxcy that teaches a post having a cable. As such, the rejection of claims
92, 93, and 95 under 35 U.S.C. § 102(b) as anticipated by Maxcy cannot be
sustained.

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Issue (2)
Claim 79 requires that the sections of the claimed post include two
overlapping lateral edge portions. According to the Examiner, the post P’
shown in Figure 5 of Maxcy “is a continuous piece of metal wherein the
flange folds overlap.” Supp. Ans. 13. Using the dictionary, the Appellant
defines the term “overlap”:
The ordinary meaning of "overlap" is "extend over
so as to cover partly .... " See The New American
Oxford Dictionary at 1213 (1st ed. 2005).

Reply Br. 4.
Based on the dictionary definition of the term “overlap,” the
Appellant then argues that:
The Examiner contends that the "flange folds" of
Maxcy's post are "edges which overlap." But there
are no "flange folds" in Maxcy's square extruded
aluminum post. Instead, Maxcy discloses pairs of
adjacent faces that are integrally joined at the post
corners. At such a corner, one face does not
"extend over" or "partly cover" its neighboring
face. Rather than "overlap," the adjacent faces of
the Maxcy post P' abut one another.
Id.
As noted above, we find that the post P’ of Maxcy includes first and
second flange sections M1 and M2. We agree with the Appellant that an
ordinary and customary use of the term “overlap” is “to extend over or past
and cover a part of.” MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 829
(Tenth Ed. 1997). Furthermore, as noted above, we give claims their
broadest reasonable interpretation consistent with the Specification. In this
case, as can be seen from the Figure shown above, the flange portions M1
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and M2 of the post P’ of Maxcy merely face each other and are not
overlapping, as required by claim 79.
Hence, Maxcy does not teach that the sections of the claimed post
include two overlapping lateral edge portions. Accordingly, the rejection of
claim 79 and dependent claims 80-82, under 35 U.S.C. § 102(b) as
anticipated by Maxcy cannot be sustained.

Issue (3)
Independent claims 1 and 61 require a post having a flat web section
“formed from two abutting planar section.” Edgman discloses a molded or
extruded plastic post 16 having a first flange section 118, a second flange
section 120, and a separated web section. FF 8. Charbaut discloses a
metallic post having a flat web (abutting double walled) structure. FF 9.
The Examiner asserts that:
It would have been obvious to one of ordinary skill
in the art having the teachings of Edgman and
Charbaut at the time the invention was made, to
modify the post of Edgman to include a flat web
central section as taught by Charbaut. One of
ordinary skill in the art would be motivated to
make this combination of including a central flat
web section in view of the teachings of Charbaut,
as doing so would give the added benefit of
providing low cost, improved strength and easy
installation (as taught by Charbaut above).

Suppl. Ans. 7.
However, the Examiner has not provided any factual basis to show
that replacing the separated web structure of the post of Edgman with the flat
web structure (abutting double walled) of the post of Charbaut necessarily
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provides a lower cost, improved strength, and easy installation or that a
person of ordinary skill in the art would understand this to be the case.
Furthermore, the Examiner has not provided any factual basis to show that
the separated web structure of the post of Edgman exhibits a lower strength,
is costlier, or is more difficult to assembly. Furthermore, we note that the
strength of a post depends on a variety of factors such as the type of
material, the dimensions, and the bending moment of inertia. Without
taking these factors into consideration, we find that it is not clear that
replacing the separated web structure of the post of Edgman with the flat
web structure (abutting double walled) of the post of Charbaut necessarily
provides a lower cost, improved strength, and easy installation. For
example, by bringing together the separated web structure of the post of
Edgman according to the disclosure of Charbaut, to form a double-walled
structure, the bending moment of inertia of the post of Edgman will change,
and hence the bending strength of the post will be affected. Similarly, the
channels 56 of the post of Edgman will be deeper such that the spacer
members 40, 52, and 54 will be longer in order to fit into the channels 56,
hence affecting installation and cost. See Edgman, fig. 2. We do not find
that the Examiner has established a factual basis to show that replacing the
separated web structure of the post of Edgman with the flat web structure
(abutting double walled) of the post of Charbaut necessarily provides lower
cost, improved strength, and easy installation or that a person of ordinary
skill in the art would understand this to be the case.
Accordingly, the modification proposed by the Examiner would not
have been obvious to the person of ordinary skill in the art. For the above
stated reasons, we conclude that the Examiner has not discharged the initial
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burden of establishing a prima facie case of obviousness of the subject
matter of independent claims 1 and 61 or their dependent claims 2-10, 54-
60, and 62-77. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir. 1988) (If an
independent claim is nonobvious under 35 U.S.C. § 103, then any claim
dependent therefrom is nonobvious).

Issue (4)
Claim 96 requires a post having a first flange section, a second flange
section, and a planar web section where the flange and the web section
include regions of a continuous strip of material having two adjacent and
overlapping lateral edges.
As noted above, Charbaut discloses a metallic fence post having a first
flange section 11, a second flange section 22, a planar web section 21, and
hooks 25. FF 9. The fence post of Charbaut is made from a single piece of
metal sheet. FF 10. Kennedy discloses a post 58 made from a single piece
of sheet metal such that end 102 of panel 112 engages edge 104 of panel 57
to form seam 106. FF 12.
The Examiner asserts that:
It would have been obvious to one of ordinary skill
in the art having the teachings of Charbaut and
Kennedy at the time the invention was made, to
modify the post of Charbaut to include a formed
post constructed of a single sheet that comprises
two lateral edges that overlap as taught by
Kennedy. One of ordinary skill in the art would be
motivated to make this combination of having
overlapping edges in view of the teachings of
Kennedy, as doing so would give the added benefit
of providing application flexibility for use with
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both open and closed fences for both safety and
privacy (as taught by Kennedy above).

Suppl. Ans. 10.
As noted above, the free hooks 25 of Charbaut are specifically used to
engage the wires T of panels D such as to orient the panels D according to
changes in direction of a property boundary. FF 11. A person of ordinary
skill in the art would infer from these teachings that the post of Charbaut
must necessarily include the free hooks 25 in order to assemble the panels D,
hence in order to function as a fence post. Where the proposed modification
would render the prior art invention being modified unsatisfactory for its
intended purpose, the proposed modification would not have been obvious.
See Tec Air Inc. v. Denso Mfg. Michigan Inc., 192 F.3d 1353, 1360 (Fed.
Cir. 1999); In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984). "A reference
may be said to teach away when a person of ordinary skill, upon
[examining] the reference, would be discouraged from following the path set
out in the reference, or would be led in a direction divergent from the path
that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994).
Here, because the post of Charbaut requires hooks 25 to have free
edges in order to assemble the panels D, we find that the post of Charbaut
cannot have adjacent and overlapping lateral edges, as suggested by the
Examiner. Specifically, overlapping the edges of flanges 22 would
eliminate the free hooks 25, and hence would render the fence post of
Charbaut unsatisfactory for its intended purpose, namely, orienting the
panels D in a fence. We thus find that Charbaut would have discouraged
one of ordinary skill in the art from providing the adjacent and overlapping
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edges of Kennedy. Accordingly, the modification proposed by the Examiner
of providing the adjacent overlapping edges of Kennedy to the fence post of
Charbaut would not have been obvious to the person of ordinary skill in the
art. For the above stated reasons, we conclude that the Examiner has not
discharged the initial burden of establishing a prima facie case of
obviousness of the subject matter of claims 96-113.
Accordingly, the rejection of claims 96-113 under 35 U.S.C. § 103(a)
as unpatentable over Charbaut and Edgman is reversed.

CONCLUSIONS
1. The Appellant has failed to demonstrate that the Examiner erred in
determining that the post of Maxcy includes: (a) a “first flange section and a
“second flange section” and (b) a “cable passageway” that is “sized to
clearingly receive a cable therethrough.”
2. The Appellant has shown that the Examiner erred in determining that
Maxcy teaches a post having flanges that overlap.
3. The Appellant has shown that the Examiner erred in determining that
it would have been obvious for a person of ordinary skill in the art to have
modified the separated web structure of the post of Edgman to include the
flat (abutting double walled) web structure of the post of Charbaut.
4. The Appellant has shown that the Examiner erred in determining that
it would have been obvious for a person of ordinary skill in the art to have
modified the post of Charbaut to include adjacent and overlapping lateral
edges as taught by Kennedy.

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DECISION
The Examiner’s rejection under 35 U.S.C. § 102(b) as anticipated by
Maxcy is affirmed as to claims 78, 88, 90, 91, and 94 and reversed as to
claims 79-87, 89, 92, 93, and 95.
The Examiner’s rejection of claims 1-10 and 54-77 under 35 U.S.C. §
103(a) as unpatentable over Edgman and Charbaut is reversed.
The Examiner’s rejection of claims 96-113 under 35 U.S.C. § 103(a)
as unpatentable over Charbaut and Edgman is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

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LV

GARY PETERSON
211 N. ROBINSON AVE.,
SUITE 450
OKLAHOMA CITY, OK 73102