Appeal No. 1999-0636 Page 9
Application No. 08/828,375
a teaching that the gate has a height "less than approximately
50 inches" and "an alarm activated by movement of said gate."
Regarding the height of the gate, the examiner's position
is that the specific height of the gate is not seen as
constituting a patentable distinction because one having
ordinary skill in the art would have readily recognized such a
dimensional decision as a matter of design engineering choice
(answer, pages 3 and 4). The appellant, on the other hand,
asserts that "[t]here is no reason to believe that anyone
would be motivated to reduce the size of MARTINEK to less than
approx. 50 inches" (brief, page 16). We agree with the
examiner.
One of ordinary skill in the art reading the Martinek
disclosure would have understood that the disclosed gate
assembly is intended to form a retractable barrier across an
opening and would have appreciated that the dimensions of the
gate must be determined by the particular opening sought to be
closed. Further, we find absolutely no teaching or suggestion
by Martinek that the disclosed gate is suitable only for
openings of 50 inches or more in height. Moreover, the
appellant has not alleged or shown that the claimed height
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