Appeal No. 2004-1246
Application No. 09/960,948
determination that a reference is from a nonanalogous art is
twofold. First, it must be decided if the reference is from within
the inventor’s field of endeavor. If it is not, then it must be
determined whether the reference is reasonably pertinent to the
particular problem with which the inventor was concerned.2
In the present case, appellant argues that the field of
endeavor is nail polish applicators or cosmetic applicators,
however, the relatively broad scope of the appealed claims, which
make no mention of the applicator being used for applying either a
cosmetic or nail polish, justifies a relatively broad
interpretation of the stated field of endeavor. Under these
circumstances, we are of the view that Funcke is in the same broad
field of endeavor as the claimed invention since the appealed
claims are directed to a container and applicator combination of
unspecified utility3, and since Funcke is directed to a combination
container and toothbrush, which toothbrush is an “applicator” in
2On page 7 of the answer, the examiner implies that the test
for analogous art is whether the applied references are analogous
to each other. However, as correctly noted by appellant on page
2 of the reply brief, the In re Wood test for analogous art is an
inquiry concerning the relationship of the applied prior art
reference to appellant’s invention.
3The preamble of each of the appealed claims simply states
that the claim is directed to “A combination container and
applicator . . . .”
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