Appeal No. 1998-0252
Application No. 08/555,795
measuring receptacle, volumetric indicia thereon
indicating volume in a certain ratio to actual
volume, and a legend indicating the ratio, and in
our judgment the appealed claims define this
relationship. 418 F.2d at 1396, 164 USPQ at 49.
Thus, the court regarded the fact that indicia indicating the
level of the contents of an ordinary measuring cup to be
something other than what it actually was established a
“functional relationship” between the indicia and the
structure that gave the indicia patentable weight.
In re Gulack also states that differences between an4
invention and the prior art cited against it cannot be ignored
merely because they reside in the content of the printed
matter (703 F.2d at 1385, 217 USPQ at 403). In Gulack,
indicia was placed on an endless band in order to exploit
certain arithmetic properties of particular prime numbers. In
reversing the examiner’s decision that the printed matter was
entitled to no patentable weight, the court pointed out that
the endless band serves two functions, “it supports the
sequence of digits and it presents the digits as an endless
sequence with no discrete beginning or end” (703 F.2d at 1382,
217 USPQ at 402), “[t]hus, the digits exploit the endless
4703 F.2d 1381, 217 USPQ 401 (Fed. Cir. 1983).
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