Appeal No. 2005-1557
Application 09/954,604
cutout or leg structures are not alternative because “Bredal teaches the use of four quarter-sized
pallets, while Mathieu discloses ‘a chair, table or the like,’ not a pallet,” pointing out that
Mathieu makes the chair legs from metal tubes which does not apply to Bredal’s plastic quarter-
pallets (reply brief, page 3).
On this record, we agree with the examiner. The issue in this ground of rejection is
whether one of ordinary skill in this art would have been led by the combined teaching of Bredal
and Mathieu to modify the pallets of Bredal by forming the legs along the diagonal required by
claim 38 as taught by Mathieu. We find that Bredal in fact would have disclosed to this person
that the “legs . . . arranged at a respective corner” can be in any configuration, as long as each is
connected to a sideflange, as the “S-shaped” legs shown in the Bredal Figures are preferred
embodiments, which are not controlling in considering the teachings of the reference (e.g., col. 1,
ll. 14-16, and col. 2, ll. 1-28). See generally, In re Lamberti, 545 F.2d 747, 750, 192 USPQ 278,
280 (CCPA 1976) (“[T]he fact that a specific [embodiment] is taught to be preferred is not
controlling, since all disclosures of the prior art, including unpreferred embodiments, must be
considered.”). Bredal further would taught that the pallets therein can be manufactured from any
sheet material, including metals (e.g., col. 1, ll. 11-66, and Bredal claims 8 and 9). We find that
Mathieu would have disclosed nestable articles, including weight bearing chairs and tables as
well as “other articles with legs which it is desired to pack up for dispatch or for storing,”
wherein the legs are formed along diagonals as specified in claim 38 as shown in the Mathieu
Figures, including Figs. 12 and 18, and can be made of, e.g., metals and moulded materials (e.g.,
page 2, ll. 34-82). We further find that the legs disclosed by Mathieu are not tubular in shape as
one of ordinary skill in the art would have observed from the reference figures.
Therefore, the combined teachings of Bredal and Mathieu provide substantial evidence
supporting the examiner’s position, and particularly the absence of a limitation of leg
configuration and positioning in the corners of the pallets of Bredal and the teachings of Mathieu
with respect to leg positioning in weight bearing, nestable articles, the articles of the two
references prepared using the same and similar materials. Accordingly, we are of the opinion
that one of ordinary skill in the art routinely following the applied prior art would have
reasonably arrived at the claimed nestable pallet encompassed by appealed claim 38, including
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