Appeal 2007-2897
Application 09/934,777
Appellant argues "[l]abeling boxes having numeric indicia or other symbols,
even if color coded, does not arise to the present claimed invention." (Br. 17.)
With respect to this argument Appellant references a Declaration of record
submitted by the inventor, Chris Kreutner. The Declaration describes sales of
“labeled packaging tape” (Declaration, at 2), and discusses the teachings of Hunter
and Williams (id. at 3-4). Hunter is no longer relied upon by the Examiner. The
Declaration does not explain how the sales are tied to the claimed invention or
discuss the cited prior art teachings as a whole. In fact, the Declaration is silent
with respect to the teachings of Plummer, Kitagawa, and Okisawa. Thus, we find
the Declaration does not provide sufficient evidence to overcome the Examiner’s
prima facie case of obviousness.
Appellant also argues that neither Plummer nor Williams discloses pre-
printing indicia repeatedly on a roll of adhesive tape. (Br. 16.) We disagree. The
Examiner relies on Plummer for teaching colored tape with repeated indicia,
including letters. (Plummer, col. 3, ll. 59-63.) Williams further teaches that it was
known to those of ordinary skill in the art to have messages pre-printed on a carrier
layer of a tape and it is further known to customize the message desired on the
tape. (Williams, col. 1, ll. 43-53.) It was also known in the art to customize tape
with an address or destination, company name or warning. (Williams, col. 2, ll.
23-31, col. 3, ll. 33-36.) In any case, it would have been obvious to one of
ordinary skill in the art to substitute the repeated indicia of Plummer with the
destination of Williams, thereby obtaining the invention of claim 6. Such a
substitution does not lend patentability to an invention otherwise old in the art,
absent unexpected results. See KSR Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1740
(2007) (“the mere substitution of one element for another known in the field . . .
must do more than yield a predictable result”).
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