Appeal No. 2006-1451
Application No. 08/802,472
And on p. 12
To continue the theme, three of the packaging 52 items can
be located in a box 54 resembling that which is used to contain or
sell golf balls
Accordingly, a claim to the shape of the outer packaging is described and
enabled only to the extent of a box that is shaped to resemble the type of box the iconic
shape is ordinarily enclosed in, not to the extent that it is shaped to resemble any
activity visually suggested by the iconic shape. More to the point, the specification
shows that any package that resembles the package the original of the iconic
representation would be sold in would meet the claim limitation. We note that one of
ordinary skill would immediately apprehend the idea of packaging a representation of a
sports playing piece, such as those described in Gossard, with the same shape of
package as the original item the icon represents. For example, a person of ordinary
skill in the novelty packaging art would immediately consider placing Gossard’s baseball
embodiment in a cubical outer package, for both the reason that this would be the
shape that consumed the least packaging material using flat surfaces, and that this
would be the same shape as the cubical cardboard boxes that baseballs are almost
universally sold in.
The appellant further argues essentially the same as in claim 5, particularly the
lack of a specific description that the photographs are used during the respective
activity, and our discussion with respect to claim 5 applies here as well.
14
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