Appeal No. 97-4042
Application 08/578,248
“tissue box” does not form a part of Mackey’s tray (any more
than the large beverage container depicted by the appellants
in Fig. 2 forms a part of their tray) and (2) Mackey’s tray
clearly has the capability of being used without the tissue
box. Moreover, even if Mackey’s tray was used in conjunction
with a tissue box, it still has the capability of being used
by a person having small legs (such as a child). As to the
appellants’ contention concerning the leg 14 engaging the seat
when it is in the extended position, Mackey’s tray clearly has
the capability of being used in the claimed manner by a person
sitting on seat which did not extend laterally as far as the
leg 14. As to the appellants’ contention concerning the legs
13 and 14 being in the horizontal position, even if the “right
side” were raised a slight amount as the appellants contend,
there is no reasonable basis for concluding that this would
prevent Mackey’s tray from being used in the claimed manner.
In any event, as we have noted above, Mackey’s tray still has
the capability of being used in the claimed manner with the
legs extended.
It is also the appellants’ contention that the body of
the tray of Mackey cannot be considered to be elongated. This
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