Appeal 2006-1533
Application 10/607,472
functional relationship with the rings by forming a loop” (Br. 12) is not
availing to the Appellant because the numbers could have formed a loop on
any substrate.
Unlike Gulack, the Appellant in the present case does not have a new
algorithm. Like the Appellant’s color cards and chromatic wheel,
Napolitano’s color cards have the capability of being aggregated according
to colors on the circular area with pie-shaped sections (col. 2, ll. 36-38). The
Appellant argues that Napolitano does not disclose that type of aggregation
(Br. 12 and 17; Reply Br. 8), but that argument is not persuasive because the
Appellant is claiming a game device, not a method of playing a game. The
claims require color cards that can be aggregated according to a chromatic
order of colors on a chromatic wheel, and Napolitano’s color cards and
circular area with pie-shaped sections (col. 2, ll. 36-38) have that capability.
Because the Appellant’s specification does not provide a limiting definition
of “chromatic order”, any order of colors in Napolitano’s pie-shaped
sections reasonably can be considered a chromatic order.2
The Appellant argues that in In re Levin, 107 F.2d 30 (Fed. Cir. 1997),
the Federal Circuit applied Gulack to printed color materials under
35 U.S.C. § 101 (Br. 13). That argument is irrelevant to the present
rejections under 35 U.S.C. §§ 102(b) and 103.
The Appellant relies (Br. 14) upon the statement by the court in In re
Ngai, 367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004) that
USPQ at 402.
2 The Appellant’s argument that Napolitano’s “sections are arranged in a2
random-order to enable the required ‘chance’ functionality” (Br. 19) is not
well taken because it is the spinning of the spinner (18) that enables the
chance functionality (col. 3, ll. 61-63), not the arrangement of the colors.
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