Appeal No. 2006-1319
Application No. 10/307,045
reasons stated infra, we sustain the examiner’s rejection of claims 9, 13 and 17 under 35
U.S.C. § 103.
Appellant argues, on pages 6 and 7 of the brief that Gee and North are not
analogous to each other. Appellant reasons that because Gee is directed to a medical
information and emergency medication packet and North is directed to a method of
advertising, they are not analogous to the claimed emergency health history card. See
pages 7 and 8 of the brief. Appellant acknowledges that North teaches a medically
related recording card but asserts:
the card is not meant as a medical information card to be used in emergency
situations, but is meant for use by recording thereon the transactional data of
medically related purchases made with the associated debit or credit card, such as
prescriptions and doctor office visits.
Appellant thus asserts that as the references are non analogous, there is no motivation in
either of the references to be combined in the manner asserted by the examiner. See page
10 of the brief. Appellant further argues that even if the references are combined, the
combination does not:
disclose a medical and information card including written prompts and spaces for
personally identifying information and personal medical information, including
personal medical history information, medical insurance information and medical
care provider information. Nor do Gee Sr., nor North et al. disclose utilizing a
sponsor or distributor and redeemable coupons and printed offers to cover the cost
of creating and distributing the emergency health history kits.
See pages 11 and 12 of the brief. Finally, appellant argues that the references do not
appreciate the existence of the problem to be solved by appellant’s invention.
In response, the examiner states, on page 5 of the answer:
[B]oth Gee Sr. and North et al. pertain to the employment of a personal health
card to be carried by a user on their person and to be used when away from any
health facility. Each card of Gee Sr. and North et al. pertains to keeping health
information on one’s person, the particular information pertaining to the intended
printed matter. Where the only difference between a prior art product and a
claimed product is printed matter that is not functionally related to the product,
the content of the printed matter will not distinguish the claimed product from the
prior art. (citing, In re Ngai, 367 F.3d 1336, 70 USPQ2d 1862 (Fed. Cir. 2004)).
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