Appeal No. 97-0064
Application No. 08/286,785
"Wittwer uses labels strictly for anti-tampering purposes;
product identification is not even a consideration." Although
one could view product identification as being encompassed by
"logos, codes or the like," Wittwer specifies that the codes or
logos must remain visible. Therefore, they cannot be exceedingly
small. Accordingly, Shamir is not applicable and, as such, not
properly combinable with Wittwer.
In addition, the examiner states (Final Rejection, page 6)
that "[a]s to the claimed medication contents of the pills, it is
respectfully submitted that the use of a regular size label
having the contents and the source identification of the medicine
is notoriously well known." We agree that such information is
generally included on a label on the medicine bottle. However,
we cannot agree with the examiner's conclusion that "it would
have been an obvious expedient for one with ordinary skill in the
art to print the information on a micro-barcode label with art
recognized equivalent," without some evidence showing either the
need to have such information on each pill or the equivalence of
providing the information on the bottle with having it on each
pill. The examiner's "further motivation" (Final Rejection, page
6) for moving the information to the individual pill, i.e., to
"prevent fraudulent [sic] in the case that the contents of the
pills are considered critical" comes straight from appellants'
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