Appeal No. 2001-2251 Page 7
Application No. 09/345,857
We reach the same conclusion, for the same reasons, with regard to the like
rejections of independent claims 4 and 11. Claim 4 requires that the package and the
product each have lattices defined by individual cells, with at least some cells of the
lattice on the product having decorative markings matched to the cells of the lattice on
the package. Claim 11 requires the same elements, however, the lattices are non-
identically matched and each has individual cells having a shape derivable from the
decorative markings.
The Section 103 rejections of independent claims 4 and 11 and dependent
claims 5-10 and 12-18 will not be sustained.
REMAND TO THE EXAMINER
This application is remanded to the examiner for consideration of the following:
(1) Whether a further search would be appropriate for prior art in areas where indicia or
portions thereof that appear on the consumer product also appear on the outer surface
of the package, such as packaged facial tissues, paper towels, napkins, candy,
cookies, and the like.
(2) Whether the “indicia” recited in the claims on appeal is “printed matter” and, if so,
whether or not it is functionally related to the substrate in a new and unobvious way so
as to distinguish over the prior art in terms of patentability. See In re Gulack, 703 F.2d
1381, 1385, 217 USPQ 401, 403-04 (CAFC 1983).
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