Appeal No. 2002-0421
Application No. 09/264,294
material and defining at least one tab on a side of an annular
flange opposite a nipple, and means for fixedly securing the tab
At the outset, it is well worthy of commenting on the
circumstance that a design patent to Grubb is the basic
reference. Due to the extremely limited information that can be
derived from a design reference, it becomes quite clear in the
present case that important findings cannot be made relative to
this reference, e.g., the precise nature of the connection
between the teething ring and the toy and whether stitching is
employed to fixedly secure the teething ring to the depicted toy.
Thus, it is speculative as to the structural attributes of the
teething toy portrayed in the design patent. In any event, it
readily appears from the examiner's rationale that the teething
toy of Grubb would have to be significantly altered to achieve
the claimed stuffed toy and pacifier invention. From our
perspective, the motivation to do so would come from appellant's
teaching and not the applied prior art. We certainly are
cognizant of the highly relevant teaching of Silverstein as it
pertains to the infant's toy and pacifier set forth in
appellant's claim 1. However, in the context of the examiner's
rejection on appeal, it is our opinion that the two references,
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