Appeal No. 2005-1729 5
Application No. 09/921,762
of the answer for a statement of the examiner’s position. However, like appellants, and for
the reasons set forth on pages 9-11 of the brief and pages 2-3 of the reply brief, we find
that the examiner’s position is unreasonable and attempts to totally read the “first distance”
limitations out of the claims subject to this rejection. Moreover, there is no basis, other than
speculation, for the examiner’s conclusion that the APA somehow would provide “a tighter
fit with a drag rail of the like crate stacked thereon,” as required in independent claim 1,
and by similar language in independent claims 32 and 35. Thus, we will not sustain the
rejection of independent claims 1, 32 and 35 under 35 U.S.C. § 102(b) as being
anticipated by the APA, or the rejection of claims 2 through 4, 31, 33, 34, 36 through 38
and 40 through 43 which depend therefrom.
As for the rejection of claims 7, 9 through 11, 30, 44 and
47 under 35 U.S.C. § 102(b) as being anticipated by Apps, while we agree with the
examiner that Apps discloses a crate comprising a side wall (e.g., 26 or 28) formed with a
bottom surface or floor structure (34) and that the crate therein includes a “drag rail”
formed by projecting portions of the perimeter structure (36) of the floor structure which
each form a base wall of a respective redoubt member (66 or 68), we must agree with
appellants that Apps fails to teach or suggest a crate wherein “an inner surface of the side
wall is formed to position at least a portion of the side wall over the drag rail,” as in
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