Appeal No. 2006-1451
Application No. 08/802,472
support a rejection. We find no such suggestion in Gossard and the examiner has not
shown any.
Therefore, we find the examiner's arguments as to claims 10, 14 and 15 to be
unpersuasive. Accordingly, we do not sustain the examiner’s rejection of claims 10, 14
and 15 under 35 U.S.C. § 103 as being unpatentable as obvious over Gossard.
As to claim 18, this claim is dependent from claim 5 and specifies that an outer
layer of packaging is added that is shaped to visually suggest the activity. The
examiner argues that it would have been an obvious matter of design choice and it is
notoriously well known to select such a package.
It would have been an obvious matter of design choice to add an
outer layer of packaging shaped to visually suggest information
about the associated activity since this is an inherently old and well
known concept in the art of packaging/marketing (i.e., adding a
plastic bubble enclosing the contents for sale in a store as well as
for shipping purposes, to protect the contents, and also printing the
contents or various characteristics of the contents on the outside
layer of packaging, which in the instant case may include: ''Baseball
shaped sports memorabilia Bank'' or a similar phrase, along with
the location of the manufacturer). [See Final Rej. at p. 6-7]
The appellant argues that the appellant asked the examiner to provide evidence
of the notoriety of packaging shaped as claimed and that the examiner did not provide
such evidence and that even were one to follow the theoretical example offered by the
examiner one would not achieve the claimed subject matter. More particularly, the
appellant urges that
More so, even if we forgive all the above discussed
deficiencies, and find some reason to combine the Examiner's
personal recollections of a walk through some unspecified
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