Appeal No. 2005-1264 Page 11
Application No. 09/682,594
(generally coincident with) a roof of the vehicle (Figure 18) and a second position
wherein the storage surface is generally coincident with the rear side of the vehicle
(Figure 19). There is no position of the carrier wherein the storage surface is generally
coincident with a lateral side of the vehicle as called for in claim 35.
The examiner’s position that claim 35 is directed to the roof rack only and that the
recitation of the vehicle and its relation to the roof rack is merely functional language
(answer, page 5) is not well taken. It is true that the preamble of claim 35 recites only a
“re-configurable vehicle roof rack system,” but claim 35 also positively recites “a first
guide rail and a second guide rail affixed to the vehicle roof.” This limitation necessarily
requires the guide rails of the system to be affixed to the vehicle roof, which likewise
constitutes a positive recitation of the vehicle in combination with the storage surface,
guide rails and connecting members of the roof rack system. Accordingly, the limitation
that the connecting members slide along the guide rails to move the storage surface
between a first position generally coincident with the roof of the vehicle and a second
position generally coincident with a lateral side of the vehicle cannot simply be
dismissed as functional or intended use language. As noted above, this limitation is not
met by Aftanas. Accordingly, the anticipation rejection of claim 35, and claim 37 which
depends therefrom, cannot be sustained.
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