Appeal No. 2006-3175
Application No. 10/419,601
bands having indicia on the outer surfaces thereof which are different from the
indicia on the band on beverage container 10 (¶ 0021). Other examples of
identifying indicia include colors, a contrast between two colors, and a
combination of symbols (for example, alpha-numeric characters) and colors
(¶0021). In some examples, indicia are recessed into the outer surface 16, in which
case, colors may be applied to add contrast between the indicia and background of
the band (¶0022). In use, at the beginning of a party or other gathering, the host
distributes a group of elastomeric bands, each of which has a specific identifying
indicia different from the identifying indicia of the other bands of the group. The
recipients of the bands apply the bands to their beverage containers, thus reducing
the chances of mistake regarding which drink belongs to whom (¶0026).
The examiner’s position, in rejecting claims 1-20 as being unpatentable over
Murphy in view of Lyon or Luedde, is that it would have been obvious to modify
Murphy in view of Lyon or Luedde “by attaching the indicator to an elastic band
and attaching the elastic band to the baby bottles since this would allow the
indicator to be attached to and removed from the baby bottles in an easier and
faster manner” (answer, p. 6). The problem with the modification and motivation
therefore proposed by the examiner is that Murphy teaches that the identification
system disclosed therein “should be permanently affixed to each of the plurality of
drinking cups so that a toddler cannot detach or otherwise remove the identification
system” (¶0008). Murphy therefore teaches away from a modification as proposed
by the examiner which results in an indicator that may be easily detached.
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