Appeal No. 2006-1451
Application No. 08/802,472
11/1/1993). For example, the Babe Ruth wristwatch was clearly marketed together with
its plastic baseball shaped package that held a Babe Ruth logo on it, as shown by the
presence of both the watch and package on the original advertisement. The watch
contains an emblem of the playing field of the sport the iconic baseball conveys,
implying use during a baseball event and the case is a plastic baseball replica, and
therefore a toy after removal of the watch, made of plastic, and as such could be written
upon with a magic marker. Spector’s bear shaped container contains a jar, not in any
manner shaped as a bear and gummy bears, described as similar, but clearly not the
same, and therefore different from, the shape of the bear container. A large bear in a
shape similar, but not the same as, a gummy bear might suggest eating gummy bears.
Servick’s football shaped container is taught to also be a toy and can contain such items
as deodorant used during sports activities in shoes, and can have a keychain
attachment and can be made of a number of materials that inherently accept writing
upon them.
CONCLUSION
To summarize,
• The rejection of claims the rejections of claims 5, 9, 11, 13, 20, 22, 28, 30 and
31 under 35 U.S.C. § 102(b) as being unpatentable as anticipated over Gossard
are sustained.
• The rejections of claims 8, 12, 18, 29, 51, 53, 55 and 57 under 35 U.S.C. § 103
as being unpatentable as obvious over Gossard are sustained.
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