Appeal No. 2005-1729 6
Application No. 09/921,762
independent claim 7 on appeal. The examiner’s attempt to construe the spaced
reinforcing posts (79) of Apps as being a part of the inner surface of the side wall structure
(32) of the crate which thereby extends over the drag rail is unavailing. Apps, column 3,
lines 54-59, makes clear that the spaced reinforcing posts (79) interconnect the floor
structure (34) with the rectangular structure (32) of the crate “by engaging the tops of
adjacent lateral or longitudinal struts 60, 62 and extending up and secured to the inside
surface 38 of the rectangular structure 32.” From this disclosure, it is clear that the
reinforcing posts (79) extend up and are secured to the inner surface of the rectangular
side wall structure (32) and thus do not define and are not part of the inner surface of the
side wall structure. Because there is no portion of the inner surface of the side wall
structure (32) of the crate in Apps which is positioned over the drag rail, it follows that
claim 7 is not anticipated by Apps. In addition, it is clear that claims 9 through 11, 30, 44
and 47, which depend from claim 7 likewise are not anticipated by Apps. Therefore, the
examiner’s rejection of claims 7, 9 through 11, 30, 44 and 47 under 35 U.S.C. § 102(b) as
being anticipated by Apps will not be sustained.
Regarding the rejection of claims 1 through 4, 32 through 38 and 40 through 43 under
35 U.S.C. § 103(a) as being unpatentable over the APA, the essence of the examiner’s
position is that the APA discloses the claimed invention “except for the stacking of two
crates” (answer, page 7). The examiner then concludes that it would have been obvious to
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