Appeal No. 2006-1451
Application No. 08/802,472
Analysis.
We first look to the intrinsic record to determine whether there is any objective
standard for these claim terms. The specification states that
It has been discovered that packaging can and should have
independent utility from merely containing. The shape of the
packaging can be useful, for example, in communicating what is
in the packaging and/or how to use the contents of the
packaging. … The process for making structural indicia packaging
can therefore be described as having the steps of selecting a
symbol or icon having a shape that suggests an activity …
(emphasis added) [See Specification at p. 3-4]
And
What is important is to pick a symbol or icon suitable for
thematically-shaped packaging for a subsequently used article.
[See Specification at p. 13]
And
There can be any item or article having a use suggested by the
shape of the packaging… [See Specification at p. 15]
The specification then provides a golf ball as an example of the shape and rain
apparel, insect repellent and bee sting treatment as an example of the contents.
Perhaps most informative of the objectivity, or lack thereof, of any standard for the
suggestive power of the icon is the specification’s description of the inclusion of the
raingear.
For a more specific example, packaging shaped like a golf ball
suggests that the content of the packaging is useful in connection
with the game of golf, i.e. light weight rain apparel or gear
packaged in the golf ball for use in playing golf in the rain.
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