Appeal No. 2006-1451
Application No. 08/802,472
As to the appellant’s second argument, it is unclear whether collecting
photographs (e.g. trading cards) is itself a sport, but this argument is moot given that
claim 5 imposes no limitation requiring a specific activity to be a sport, nor that the
article be used as part of the play of a sport, but only that the article be used during an
activity that the package visually suggests. The person performing the usage does not
have to be engaged actively in the activity, but may instead be a spectator, so long as
the spectating occurs during the activity. Similarly, as to the appellant’s fifth argument,
whether Gossard discloses the use of photographs as part of the play of a sport is moot
for the same reason. As to the appellant’s fourth and fifth arguments, the fact that the
examiner imagined such activity and usage itself negates the argument that no one
could have imagined them. Certainly, the appellant has produced no evidence that no
one could have imagined them; the appellant has only offered a conclusory assertion of
that.
As to the appellant’s seventh argument, whether Gossard discloses marketing
the combination of container and cards, Gossard’s claim 1 is to the combination of the
container and cards and Gossard’s patent property was to that combination, which is
substantial evidence of an intent to market the combination.
Finally, we take up appellant’s sixth argument that the art must explicitly disclose
a claim limitation in the appellant’s reference to In re Bond, 910 F.2d 831, 15 USPQ2d
1566 (Fed. Cir. 1990). As indicated by appellant, Bond states that
For a prior art reference to anticipate in terms of 35 U.S.C. §102,
every element of the claimed invention must be identically shown in
a single reference.
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007