Appeal No. 96-4137
Application 08/260,674
changes over time and that the claim language covers this
change. As such, the term “average” in claims 22 and 23 is
based on the variable average size of a child. This being the
case, whether an article of furniture was covered by the claim
at a point in time would be determined not on the basis of the
structural elements and their interrelationships, as set forth
in the claim, but by the average size of a child at that point
in time. This would give rise to uncertainty as to what the
average size of a child is and thus uncertainty as to the
interpretation of the claim. Cf. Ex parte Brummer, 12 USPQ2d
1653, 1655 (BPAI 1989). Such uncertainty we believe is
exactly what the requirements of 35 U.S.C. § 112 seek to
avoid. Therefore, we will sustain this rejection.
In regard to the rejection of claims 1, 5, 12, 19,
20 and 22 under 35 U.S.C. § 103 over Turner in view of
Quinton, the examiner’s answer states:
Turner has a child seat as set forth in the
prior office action with a lumbar support
comprising portions of elements 76 and 78.
Turner discloses that these elements are to
support a child’s back comfortably. Turner
lacks a convex lumbar support. Quinton
shows a convex lumbar support 20 on a seat.
It would have been obvious to have provided
the lumbar support of Quinton on the seat
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