Appeal No. 97-0972
Application 08/399,571
as to be inherently capable of functioning to maintain a biased
theater seat in a “substantially horizontal orientation” as
required by each of the independent claims on appeal. See Ex
parte Levy, 17 USPQ2d 1461, 1463-64 (Bd. Pat. App. & Int. 1990).
This being the case, we will not sustain the rejection of claims
1-12 under 35 U.S.C. § 102(b) as being anticipated by Devney.
Turning next to the rejection of claims 1-3, 6 and 7 under
35 U.S.C. § 102(b) as being anticipated by Gardels, the answer
states that:
Gardels teaches a member, as illustrated in
Figures 1-4 comprising of an elongated section (10)
. . . two wings (18, 24), and a slit (22) located
between the upper end of the elongate section (10) and
at a central location. [Page 4].
We also would add that, in the embodiment of Fig. 6 of Gardels,
the plate-like structure at the upper end of the hold-down member
110 has portions that extend to either side of the hold-down
member and, thus, these portions may be considered to form
“wings” as broadly claimed. Additionally, the hold-down member
of Gardels is described as being “strong” and “made of metal or
other suitable material” (column 2, lines 18 and 19).
The appellants concede that they have not claimed a theater
seat as a part of the claimed combination (see brief, page 4)
but, nevertheless, contend that the hold-down member of Gardels
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