Appeal No. 2006-0158
Application No. 10/668,832
we will adopt the examiner’s reasoning as our own in sustaining
the rejection of record, and we add the following comments for
emphasis only.
Ledman, like appellant, discloses a container or package,
and method of making the same, having a note thereon that
expresses a positive feeling to the recipient of the package. As
acknowledged by the examiner, the note depicted on Ledman’s
package does not include the claimed request that the package
remain unopened, although the message depicted in figure
2 clearly suggests that the unopened package is filled with a
positive feeling. In particular, the Ledman message reads, in
relevant part “this box is filled with my love for you . . . . ”
As for the Ledman message not including a request that the
package remain unopened, we fully concur with the examiner that
the claimed message, being not functionally related to its
substrate, does not serve to patentably distinguish the claimed
package from the package disclosed by Ledman. See In re Gulack,
703 F.2d 1381, 1385-86, 217 USPQ 401, 404 (Fed. Cir. 1983). We
note that the appealed claims, when read in light of the present
specification, encompass a note comprising a substrate 20
separate and distinct from the wrapping material 12 of the
package. Although appellant contends that the printed indicia
3
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