Appeal No. 2006-1451
Application No. 08/802,472
Therefore, we find the appellant's arguments as to claim 18 to be unpersuasive.
Accordingly, we sustain the examiner’s rejection of claim 18 under 35 U.S.C. § 103 as
being unpatentable as obvious over Gossard.
As to claim 29, this claim is multiply dependent from claims 5 and 8-23 and
specifies that the package and article be made from plastic. The examiner argues that
it would have been an obvious matter of design choice based on the suitability of plastic
as known in the art. The appellant argues that making photographs out of plastic may
not be possible and even if it were, would make the cards unusable for the purpose
intended, and similarly for making Gossard’s spring hinge out of plastic. [See Brief at
56.]
We agree with the examiner that plastic is a notoriously well known construction
medium for novelty items and we note that Gossard’s container is a novelty item as
evidence by its title “Novelty Container for Photographs.” As to the photographs
contained within Gossard’s container, we note that it is notoriously well known to coat
photographs with plastic to preserve them. Claim 29 is drafted with an open ended
transition phrase “comprising” and the phrase “constructed from” is open ended as well.
Nothing in the phrase “constructed the replica out of plastic and the article out of plastic”
precludes the use of other non-plastic materials in the construction. Therefore the
obvious construction of Gossard’s shell and photographs’ exterior from plastic would
meet the limitations of claim 29.
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