Appeal 2006-1533
Application 10/607,472
The Appellant argues that each of Napolitano’s cards does not have a
unique color and intensity (Br. 8 and 17-19). The Appellant’s broadest
claims do not require each card to have a unique color and intensity. Those
claims merely require a plurality of color cards each having a unique color,
hue and intensity. That claim requirement is met by any two to eight of
Napolitano’s cards having a different color and its corresponding hue and
intensity. Regardless, the color of the Appellant’s cards is nonfunctional
descriptive material, i.e., it does not have any new and unobvious functional
relationship with its substrate. See In re Gulack, 703 F.2d 1381, 1386, 217
USPQ 401, 404 (Fed. Cir. 1983). The color, therefore, does not patentably
distinguish the cards over cards having other indicia such as a different
color. Likewise, contrary to the Appellant’s argument (Br. 8), the colors and
their arrangement in the Appellant’s chromatic wheel do not patentably
distinguish the chromatic wheel over the Napolitano game board’s circular
area having pie-shaped, colored sections (col. 2, ll. 41-43).
The Appellant argues, in reliance upon Gulack, that the Appellant’s
colors enable the cards to be aggregated in a particular order (Br. 12-13). If
that were a patentable distinction, then a piece of paper having a floor plan
thereon would be patentable over a similar piece of paper having music
thereon because it would enable a building to be built rather than a song to
be played. Actually, the indicia would not render one piece of paper
patentable over the other. Likewise, the Appellant’s colors do not render the
Appellant’s cards and chromatic wheel patentable over Napolitano’s cards
and game board’s circular area with pie shaped sections having different
colors.
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