Appeal No. 2001-0389 Page 3
Application No. 09/237,880
trademark which identifies a source, but rather is a generic
designation of a particular dye.1 (brief, page 9).
Appellants refer to copies of pages from Volume 7 of the
Colour Index I for support thereof.
Appellants also refer to several U.S. patents and state
that these patents recite claim limitations such as “C.I.
Solvent Yellow 162”, without disclosing the corresponding
chemical formula. (brief, page 9).
Appellants conclude that the phrase “C.I. Solvent
Yellow 138” allows one of ordinary skill in the art to
regularly and actively determine the boundaries of
protection of the present invention.
On page 3 of the answer, the examiner rebuts and states
that there is no documentation of record that the
particularly claimed C.I. Solvent Yellow 138 has a specified
chemical formula that is not subject to change. The
examiner states that C.I. Solvent Yellow 138 is proprietary
and the structure is unknown to one of ordinary skill in the
art.
In the reply brief, appellants state that the very fact
that a C.I. designation exists establishes that it has
known, specific characteristics. (reply brief, page 1).
Our analysis is set forth below.
1 We note that this is an incorrect interpretation of the examiner’s position.
The examiner states that the phrase does not identify the dye, but rather it
only identifies the source of the dye, much like a trademark would function.
(Paper No. 7, page 3). The examiner does not state that the phrase “C.I.
Solvent Yellow” is a trademark.
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