Appeal No. 2003-0360 Page 11
Application No. 09/264,398
of the Derecktor device is to provide a strut “which is capable of being installed on any
size and model van” (column 1, lines 23-25), which in our view would be interpreted by
one of ordinary skill in the art to pertain, among other things, to vehicles of different
widths. To accomplish this, Derecktor provides a single slot that extends for the entire
length of the strut and therefore can accommodate both narrow and wide vehicles.
In the absence of evidence establishing that slots at the opposed ends of the
strut would be the functional equivalent of a single slot extending along the entire length
of the strut in the Derecktor device and would perform equally well, or would be an
improvement to the Derektor system, we fail to perceive any teaching, suggestion or
incentive in either reference which would have led one of ordinary skill in the art to
make the examiner’s proposed modification. Therefore, the combined teachings of
Derecktor and Duemmler fail to establish a prima facie case of obviousness with regard
to the subject matter recited in claim 20, and we will not sustain this rejection. It follows
that we also will not sustain the like rejection of claims 21, 22, 24, 25 and 27, which
depend from claim 20, or of independent claim 34, which contains the same limitation.
Claims 20-22, 24, 25, 27, 31, 32 and 34 stand rejected as being unpatentable
over Sibinger in view of Duemmler. In this rejection, the examiner admits that Sibinger
discloses no slots, but expresses the view that it would have been obvious to add slots
at the opposed ends “in order to allow attachment of the strut to longitudinal rails on the
vehicle to increase utility thereof” (Answer, page 7). We do not agree. Sibinger utilizes
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