the layer 24 when the layer 24 is tucked under the loop 25 to arguably form a slit spaced
from closed ends as required by claims 27-29 and 31. The examiner relies on Kolton for
a suggestion to adhesively attach the device 10 to the layer 24 of Frowein ‘087. Even if
Frowein ‘087 were so modified, this would not make up for the deficiency of Frowein
‘087 discussed above.
The examiner’s rationale in rejecting claims 32-37 as being unpatentable over
Frowein ‘087 in view of Frowein ‘514 and Humble is set forth on pages 9-12 of th e
answer. Specifically, the examiner contends that
it would have been obvious to one of ordinary skill in the art to
provide Frowein 087's function strip (elongate housing) such
that the pocket is ''closed except for the slit'' (claim 32, claim
35) wherein the slit ''sized to receive the marker'' (claim 32) and
''spaced from the closed ends'' (claim 32, claim 35) and to insert
the antitheft device ''through the wall'' (claim 36) and into the
pocket 22 since (1) Frowein 087 teaches inserting an antitheft
device into a pocket (figure 3), (2) Frowein 514 suggests
locating an antitheft device in a pocket having all its edges
closed so that the antitheft device cannot fall out and (3)
Humble et al, which teaches an antitheft device located in a
pocket having all of its edges closed, suggests disposing the
antitheft device in the pocket of an elongate housing by
inserting the antitheft device through a slot (slit) in a wall of the
pocket. Hence, Frowein 087, directed to theft detection,
teaches the combination of a label comprising fabric label
material, a detectable marker and a pocket in combination with
the detectable marker (alarm tripping device 10) being
insertable through an opening of the label into the pocket 22.
Frowein 087's label has a pair of long edges extending between
the short edges 16, and is therefore elongated. Each of the long
edges is closed as can be seen from the cross-sectional view of
figure 3. Frowein 514 and Humble et al add to the disclosure of
Frowein 087 by motivating one of ordinary skill in the art to
close all four edges of Frowein 087's elongated tubular label so
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