Appeal No. 1999-0636 Page 8
Application No. 08/828,375
surface of the "housing means" and to the left of the right
end of the gate (16) in Figure 1.
Therefore, while we have carefully considered the
appellant's argument on pages 14 and 15 of the brief, we do
not find it persuasive. To the extent that the appellant's
argument is that the Martinek gate does not pivot in addition
to expanding linearly, we emphasize that claim 21 does not
recite any pivoting or pivotable securement of the gate.
Accordingly, such a feature cannot be relied upon for
patentability of claim 21.5
Accordingly, we shall sustain the examiner's rejection of
claim 21.
The obviousness rejections
Martinek discloses an expandable gate assembly comprising
a "housing means" (the shell-like structure as discussed above
and incorporated herein) and an expandable gate (16) stored in
the "housing means." With regard to claim 25, Martinek lacks
It is well settled that the particular feature or fact upon which an5
applicant predicates patentability must not only be disclosed in the
specification but also brought out in the claims. See In re Richards, 187
F.2d 643, 645, 89 USPQ 64, 66 (CCPA 1951).
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