Appeal No. 2006-0288
Application 10/611,765
The principal issue in this appeal involves the limitation of appealed independent claim 1,
on which all other appealed claims depend, specifying “a graphical diet reminder on the upper
surface” of “a shallow container.” We determine from the specification (e.g., pages 1-2 and 5-6)
that the terms in the subject language in context would have their ordinary meaning to one of
ordinary skill in this art, and thus, the shallow container can be a plate having on its upper
surface any reminder with respect to one’s diet that is communicated in graphical form. See,
e.g., In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364, 70 USPQ2d 1827, 1830 (Fed. Cir.
2004); In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re
Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
We agree with appellants that the record before us does not contain evidence supporting
the finding of the examiner that the spoon 3 and fork 6, each having a toy figure, as positioned
on plate 1 of Buj constitute a disclosure which meets the subject limitation of claim 1. Indeed,
we find as a matter of fact that Buj discloses no more than that the spoon and fork serve the
function of influencing a child to take the food from the plate and bring it to his/her month (e.g.,
col. 1, ll. 51-55, col. 1, l. 64, to col. 2, l. 1, col. 2, ll. 24-31 and 56-68, and col. 3, l. 26, to col.
4, l. 2). Accordingly, in the absence of an explanation or evidence adduced by the examiner
establishing that the spoon and fork on the plate of Buj in fact meet the subject claim limitation,
we find that the examiner has not established that Buj prima facie in fact anticipates appealed
claims 1 through 5, 7 and 10 through 12, within the meaning of § 102(b). For the same
reason, Buj fails to supply the factual foundation for a prima facie case of obviousness under §
103(a) of appealed claims 16 through 18, which also contain the subject limitation, and the
combination thereof with Grunesien does not cure the deficiency.
With respect to the grounds of rejection of appealed claims 1, 10, 13 and 17 through 20
under § 103(a) which involve the combined teachings of Buj and Brownell, like appellant, we
cannot agree with the examiner’s findings and conclusions that “Brownell teaches a food
pyramid shaped plate” since “Brownell shows a pictorial representation of a food pyramid (see
‘OTHER PUBLICATIONS’ section of patent cover),” which listing of references includes “a
food pyramid reference providing a connection between the triangular shape of the plate and the
triangular shape of representations of the food pyramid,” and thus, that “Brownell is a pictorial
representation of a food pyramid, it is a graphical diet reminder, it is on the central section”
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