Appeal No. 2005-1264 Page 8
Application No. 09/682,594
however, is silent with regard to the latching areas 52 being “recesses” as called for in
claim 37. The appellants attempt to rely on the original drawings filed with the present
application as purportedly reflecting that the latching areas 52 are recesses. The
latching areas are illustrated in each of the original drawing Figures 1-4. There is
nothing in Figures 1 and 4 which indicates either protruding or recessed contour to the
latching areas 52. While the detail of the latching area 52 illustrated in Figures 2 and 3
could indicate a recess, it could also indicate a pivoted link or eyelet structure about
which the hook structure of a bungee cord could be engaged. The statement in
paragraph 16 of the Nguyen declaration that “the drawings clearly show that the
mounting members are provided with identified recesses” is simply not commensurate
with the scope of the original disclosure. Specifically, while latching areas 52 for
attachment of a bungee cord are clearly identified, they are not identified as recesses.
Finally, with regard to claim 38, we do not understand the additional basis of the
examiner’s rejection of this claim under the first paragraph of 35 U.S.C. § 112 to be that
the appellants’ application as originally filed failed to provide support for a “hinge bar”
affixed between the first track element and the second track element, as appellants'
argument (brief, page 13) implies. Rather, the examiner’s position is that the appellants’
original disclosure failed to provide descriptive support for a collapsible rail “hingedly
affixed to the hinge bar” as further recited in claim 38. For the following reasons, the
examiner’s position in this regard is well taken.
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