Appeal No. 2003-2062
Application 09/853,568
for such product label representations and determine their prior
art status. The examiner should also look to other products
found at a drug store with similar representations on the
medicine receptacle or label thereof, such as arthritis
medicines, joint supplements, antacid medications, dry eye or
contact lens treatments, hand creams, nasal decongestants, etc.
One particular product of interest in this regard is the liquid
form of PEPTO-BISMAL which includes a picture of a stomach and
digestive tract on the label of the bottle which are colored pink
like the product in the bottle, and which depiction has been used
for many years to represent, describe or identify that particular
medication and its use, etc.
The decision of the examiner is affirmed-in-part.
In addition to affirming the examiner’s rejection of one or
more claims, this decision contains a remand. 37 CFR § 1.196(e)
provides that
[w]henever a decision of the Board of Patent Appeals
and Interferences includes or allows a remand, that decision
shall not be considered a final decision. When appropriate,
upon conclusion of proceedings on remand before the
examiner, the Board of Patent Appeals and Interferences may
enter an order otherwise making its decision final.
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