Appeal No. 97-4042
Application 08/578,248
depicted on the left in Fig. 1). The side edges of Mackey’s
tray are clearly symmetrical with respect to the center line
(see Fig. 1). Particularly in view of the size of Mackey’s
tray relative to a car seat as depicted Fig. 2, we share the
examiner’s view that there is a sound basis to conclude that
Mackey’s tray is inherently capable of being used as a lap
tray with the elongated body portion thereof spanning the
upper portion of the legs of a user and the projections 162
extending downwardly “beyond” the outermost portion of the
upper portion of the user’s legs in the claimed manner.
Whether Mackey’s tray actually is or might be used in such a
manner depends upon the performance or non-performance of a
future act of use, rather than upon a structural distinction
in the claims. Stated differently, the tray of Mackey would
not undergo a metamorphosis to a new tray simply because it
was used as a lap tray in the claimed manner. See In re
Pearson, 494 F.2d 1399,
1403, 181 USPQ 641, 644 (CCPA 1974) and Ex parte Masham, 2
2 As used throughout the claims, we interpret ?upper legs? to be --upper portion
of the legs--.
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