there is no indication that the device 10 could be inserted into the space fo rmed between
the loop 25 and the layer 24. In any event, Frowein ‘087 does not disclos e insertion of
the device 10with the layer 24 tucked under the loop 25; rather, as illustra ted in Figure 3,
Frowein disc loses insertion of the device 10 through the open end of the pock et with the
layer 24 disposed outside of the loop 25.
As discussed above, Frowein ‘087 does not disclose a step of inserting the marker
into the pocket of the label through the wall of the pocket as called for in claim 36. It
thus follows that we cannot sustain the rejection of claim 36 or claim 37 depe nding from
claim 36 as being anticipated by Frowein ‘087.
The rejections of claim 40 as being unpatentable over Frowein ‘087 in v iew of
Kolton and c laim 39 as being unpatentable over Frowein ‘087 in view of S enior both rest
in part on theexaminer's finding that Frowein ‘087 discloses a step of insertin g the
marker throu gh the wall of the pocket. The above discussed lack of su pport in Frowein
‘087 for thisfinding, which deficiency finds no remedy in the examiner’s ap plication of
Kolton or Se nior, fatally taints the examiner's conclusion that the differencesbetween the
subject matter recited in claims 39 and 40 dependent on claim 36 and the p rior art are
such that thesubject matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art.
We al so cannot sustain the rejection of claims 27-29 and 31 as being unpatentable
over Frowein ‘087 in view of Kol ton. As discussed above, Frowein ‘087 discloses
insertion of the alarm tripping device 10 into the pocket, as illustrated in Figure 3,
through the open end of the pocket 22 between the loop 25 of upper layer 23 and layer
24, when the layer 24 is not tucked under the loop 25. Such open end is not a slit spac ed
from closed ends, as called for in claims 27-29 and 31. There is no indication in Frowein
‘087 that the device 10 is insertable through the space formed between the loop 25 and
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