Appeal No. 2006-0476
Application No. 10/365,258
We concur with appellants. However, as noted above with respect to
claim 32 which contains similar limitations, we consider the “information” on the
label to be non-functional descriptive material, as such the contents of the
information alone will not render the claim patentable, i.e. that the information
pertains to the equipment is immaterial. Nonetheless, claim 40 does recite that
the information changes over time. We find no teaching or suggestion in Fox that
the information changes over time. Accordingly, we will not sustain the
examiner’s rejection of independent claim 40 under 35 U.S.C. § 103 as being
anticipated by Fox. Claim 41 and 42 are dependent upon 40 and we similarly will
not sustain the examiner’s rejection of these claims.
New Grounds of rejection pursuant to 37 CFR § 41.50(b)
We apply a new grounds of rejection against representative
independent claims 1, 12, 23, 24, 29, 32 and 40. We leave it to the
examiner to consider whether similar rejections apply to the other claims
in the application. As stated supra we reject claim 29 under 35 U.S.C.
§ 112 second paragraph. We reject claims 23 and 24 under 35 U.S.C.
§ 102 as being anticipated by Nykoluk and we reject claims 1, 29 and 32
under 35 U.S.C. § 103 as being unpatentable over Nykoluk and we reject
claims 1, 12 and 40 under 35 U.S.C. § 103 as being unpatentable over
Dinkin in view of Nykoluk.
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