Appeal No. 2000-0791 Page 6
Application No. 08/858,286
of ordinary skill in the art. See, for example, In re Keller, 642 F.2d 413, 425, 208 USPQ
871, 881 (CCPA 1981).
While the examiner has focused upon the U-shaped cut recited in independent
claim 5, this claim also contains the limitation that the first and second plies of material
which comprise the luggage tag have “exposed and underside faces.” As we explained
above with regard to the section 102 rejection, in the Breen arrangement one of the plies
of material does not have an exposed face. Even considering Breen in the light of Section
103, this deficiency is not overcome. Thus, the teachings of Breen fail to establish a prima
facie case of obviousness with regard to the subject matter of independent claim 5 and
dependent claims 6-8, and we will not sustain this rejection.
SUMMARY
The rejection of claims 4, 8, 11 and 13 under 35 U.S.C. § 112, second paragraph,
is sustained.
The rejection of claims 1-4 and 9-13 under 35 U.S.C. § 102(b) as being anticipated
by Breen is not sustained.
The rejection of claims 5-8 under 35 U.S.C. § 103 as being unpatentable over
Breen is not sustained.
The decision of the examiner is AFFIRMED-IN-PART.
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