Appeal No. 97-0064
Application No. 08/286,785
therefore, serves as a valuable additional step that
enhances the tamper-evident qualities of the capsule
seal prepared by the present invention.
In other words, the code or logo in Wittwer must be visible, as
it must assist in assuring alignment. The examiner asserts
(Answer, page 4), "[a]lthough the presence of the codes on the
label would enhance tampering evidence, this is just considered
as an additional benefit of printing the codes on the label's
surface. The codes, themselves, have several old and known
utilities such as containing useful information for
identification purposes." The examiner's reasoning, however, is
backwards; the presence of the codes is specified as being for
enhancing tampering evidence, and any utility such as for
identification purposes would be the additional benefits. As
explained by appellants (Brief, page 16), to print a micro
barcode, which would not be visible to the human eye, would
"frustrate Wittwer's goal in promoting anti-tampering through
visual inspection of the label itself with the human eye."
Second, the examiner has skipped a step in combining the
references. For Shamir to be applied, the primary reference must
include "product identification [which] requires exceedingly
small labels" (Shamir, column 4, lines 42-44, underlining added
for emphasis). While it is true that the capsules of Wittwer use
small labels, as explained by appellants (Brief, page 11),
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