Appeal No. 2003-0360 Page 5
Application No. 09/264,398
that the “strut,” which is the entire device to which the claim is directed, has a
“substantially rectangular cross-sectional configuration,” is without support in the
specification. From our perspective, the cross-sectional configuration of the “strut” is
not “substantially rectangular,” but substantially elliptical.
While we have carefully considered the arguments presented by the appellant in
opposition to this rejection, they have not persuaded us that the specification discloses
both a strut and a tube that forms part of the strut which have substantially rectangular
cross-sectional configurations.
The examiner also has taken the position that the slots are not associated with
the tube member, and therefore this limitation also is not supported by the specification.
We do not agree with this conclusion. Claim 33 is directed to a load carrier “strut.” The
claim recites longitudinal slots located on the underside and at opposing end regions of
“said strut,” and they are disclosed as being in bottom wall 12 of the rectangular tube.
Since the tube described in claim 33 is a component of the strut, the examiner’s
conclusion here is in error.
However, since we are in agreement with the examiner on one of the two
matters raised here, this rejection of claim 33 is sustained.
The Rejection Under The Second Paragraph Of Section 112
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