Appeal No. 97-4211
Application 98/614,844
careful consideration to appellant’s specification and claims,
to the applied prior art references, and to the respective
positions articulated by appellant and the examiner. As a
consequence of our review, we have made the determinations
which follow.
Turning first to the examiner's rejection of claims 1, 2
and 5 under 35 U.S.C. § 103, we note that Peters discloses a
combi-nation cargo box and bed liner for a truck bed wherein
the box/liner is substantially of the same size as the pick-up
truck bed, and the track system supporting the box is of a
length substantially equal to the length of the truck bed.
Recognizing
the shortcomings of Peters, the examiner (final rejection,
pages 3-4), takes the position that
[s]ize is not deemed to be a patentable distinction,
but an obvious choice of the designer as evidenced
by the receptacle of Brady occupying only a limited
length. While not holding as much, the receptacle's
smaller size means less cost for materials and
labor, an engineering trade-off. Forming the tracks
to have a concomitant length is deemed to be an
obvious expedient in order to save cost of
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