Appeal No. 2004-0120
Application No. 09/898,334
to the art of toys and novelties, as taught by Lazar, for
information on how to make labels (id.).
Appellant’s arguments are not persuasive. Appellant does
not contest that Dottel discloses a binder with a label on its
spine (Brief, page 8, second full paragraph). It was well known
in the binder art that a changeable labeling system was desired.4
Lazar teaches that “[i]n some applications however a changeable
label is desirable, in that the contents of the article or the
status of the article has changed.” Col. 1, ll. 15-18. Thus
Lazar teaches use of a “magic slate” label, i.e., a whiteboard,
to provide a changeable labeling system (col. 2, ll. 15-20). As
taught by Lazar, the changeable labeling system “can be used on a
multitude of articles” and, although exemplified by use on video
cassettes or holders, “this invention is by no means limited in
its application.” Col. 2, ll. 55-59. Accordingly, we determine
4See U.S. Patent No. 6,109,812, as discussed on pages 4-5 of
the specification. It is axiomatic that admitted prior art in an
applicant’s specification may be used in determining the
patentability of a claimed invention (In re Nomiya, 509 F.2d 566,
570-71, 184 USPQ 607, 611-12 (CCPA 1975)); and that consideration
of the prior art cited by the examiner may include consideration
of the admitted prior art found in an applicant’s specification
(In re Davis, 305 F.2d 501, 503, 134 USPQ 256, 258 (CCPA 1962);
cf., In re Hedges, 783 F.2d 1038, 1039-40, 228 USPQ 685, 686
(Fed. Cir. 1986)). We also note that Ong, cited by the examiner
against claim 19 on appeal, is directed to binders with removable
inserts to achieve a changeable labeling system (see Fig. 5B).
5
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