Appeal No. 2004-2114 Page 5
Application No. 09/808,122
patentability is determined but the functional relationship of the printed matter to the
watch or clock. The functional relationship is shown in the prior art references.
Appellant also argues that the mere assertion of design choice is improper and
fails to establish a prima facie case of obviousness. While the appellant may be correct
that the provision of appellant’s symbols which relate to the cranial nerves is not a mere
matter of design, the symbols nonetheless can not patentably distinguish the claim
because, as we have stated above, the functional relationship between appellant’s
symbols and the clock or watch face is not nonobvious.
In view of the foregoing, we will sustain the examiner’s rejection of claim 1. We
will also sustain the rejection of claims 1 to 6 as these claims stand or fall with claim 1
(brief at page 3)
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