Appeal No. 2006-0609
Application No. 10/036,862
appellants specifically challenged the examiner’s “Official
Notice as to the ‘well known implements of instructional data
associated with devices for sale.’”1 See the Reply Brief, pages
2-4. Rather, the appellants argue that the apparatus or package
taught by Marino does not include an instruction (e.g., a printed
instruction containing a direction) to wipe an animal body
surface at least three times with a combination of the first and
second fresh products as required by claims 12, 23 and 30. See,
e.g., the Brief, pages 16-19. In other words, it is the
appellants’ position that the printed content of the instruction
sheet would have rendered the claimed package patentably
different from the package or apparatus taught by Marino. See
the Reply Brief, page 3. In support of this position, the
appellants refer to In re Gulack, 703 F.2d 1381, 217 USPQ 401
(Fed. Cir. 1983). Id. We do not subscribe to the appellants’
position.
1 Understandably, consistent with Rule 56, the appellants do
not assert that providing an instructional material with devices
to be sold is not well known.
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