Appeal No. 2004-2334
Application No. 09/888,145
in this case to be akin to those in Ex parte Breslow, 192 USPQ
431 (BPAI 1975), wherein a merits panel of this Board determined
that any differences between Breslow's game and the game of the
Mitchel reference applied thereagainst resided in the meaning and
information conveyed by the printed matter involved and not in
any structure per se, such that the noted differences in printed
matter were not entitled to patentable weight.
Contrary to appellant's views set forth in the brief and
reply brief, we do not see that the invention as defined in
claims 1 and 6 on appeal provides "a completely different game
structure" (reply brief, page 4) than that disclosed in Mueller.
Both appellant's game and that of Mueller require a plurality of
fortune cookies with each of the cookies containing a strip of
paper with game specific information printed thereon. Thus,
appellant's game structure is essentially the same as that in
Mueller, with the only distinction being provided by the
different content of the printed matter carried on the paper
strips in appellant's and Mueller's games and by the meaning and
information conveyed to a user/player by such printed matter.
However, under the test set forth in Gulack, supra, we have
determined that such differences in the printed matter are not
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