Appeal No. 2001-2537 Page 3
Application No. 08/802,472
examiner. As a consequence of our review, we make the
determinations which follow.
We turn first to the examiner’s rejection of claim 5 under
35 U.S.C. § 102(b) as being anticipated by Agapiou. To support a
rejection of a claim under 35 U.S.C. § 102(b), it must be shown
that each element of the claim is found, either expressly
described or under principles of inherency, in a single prior art
reference. See Kalman v. Kimberly-Clark Corp., 713 F.2d 760,
772, 218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S.
1026 (1984).
Claim 5 is directed to a method of making the combination of
a thematic package and an article contained within the package.
Claim 5 includes, inter alia, the step of constructing the
package “as a replica of a recognizable icon.” Claim 5 calls for
the package to have “a shape that is different than a shape of
the article contained therein.” In addition, claim 5 sets forth
that the shape of the package “visually convey[s] information
about an activity associated with the icon in which the article
is used.” Reading claim 5 on one of appellant’s disclosed
embodiments, the package may be in the shape of a replica of a
golf ball, and an article contained therein may be a golf tee.
In this case, an activity “associated with” the golf ball replica
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