Appeal No. 2006-1319
Application No. 10/307,045
Further, the examiner states that appellant’s argument concerning North’s card having a
different use than the claimed card is not persuasive, as the recited difference in usage
does not result in a structural difference between the claimed invention and the
combination of the prior art. See page 6 of the answer.
We concur with the examiner and find appellant’s arguments to be unpersuasive.
Claim 9 recites “the medical and emergency information card includes written prompts
and spaces for personally identifying information and personal medical information,
including at least one of personal medical history information, medical insurance
information, and medical care provider information.” Independent claim 13 contains a
similar limitation. We find, as the examiner states, the claimed information on the card is
non-functional descriptive material. Our reviewing court has said if “the printed matter is
not functionally related to the substrate, the printed matter will not distinguish the
invention from the prior art in terms of patentability.” In re Ngai, 367 F.3d 1336, 1339,
70 USPQ2d 1862, 1864 (Fed. Cir. 2004) (citing In re Gulack, 703 F.2d 1381, 217 USPQ
401 (Fed. Cir. 1983).
We find that Gee teaches an emergency health kit with a case, and a card. See
Gee figures 1 through 4, and column 2, lines 60 through 68. The card contains medical
information. Further, we note that Gee actually teaches the printed matter claimed.
Specifically in figure 4, Gee teaches that the card includes written prompts and spaces for
users to enter their medical insurance company and policy number (claimed medical
insurance information), any allergies and their condition as having diabetes (claimed
personal medical history information) and the physician’s name (claimed medical care
provider). We further note that Gee depicts in figures 2 and 4 that a logo with the words
“MED EYE-D” is printed on the card in a location which is viewable through the case.
We consider “MED EYE-D” to be either a sponsor or distributor’s indicia imprinted on
the card. North, similar to Gee, teaches a card that a person carries. The card contains
written prompts and spaces for users to enter data, and, in figure 9, North teaches that the
card can be configured to include medical data. North also teaches that such a card can
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