Appeal 2006-1533
Application 10/607,472
“[i]n Gulack, the printed matter would not achieve its educational purposes
without the band, and the band without the printed matter would similarly be
unable to produce the desired result.” Actually, as pointed out above,
Gulack’s printed matter would achieve its educational purposes on any
substrate. The Appellant argues that “the cards of the present invention
would not achieve their purpose of aggregation without the inclusion of
unique coloring and the coloring would not achieve its purpose without the
cards” (Br. 14). That argument is not persuasive because without the
coloring the Appellant’s cards still would function as cards, and without the
cards the Appellant’s colors could be aggregated on any other substrate.
The Appellant argues that Napolitano’s cards do not have hue and
intensity indicia (Br. 18-19). Like the colors, the indicia are nonfunctional
descriptive material and, therefore, do not patentably distinguish the claimed
invention over Napolitano. Without the indicia, the cards would still
function as cards, and without the cards, the indicia could be placed on any
other substrate.
For the above reasons we are not convinced of reversible error in the
Examiner’s rejection over Napolitano.3
Rejection over Napolitano in view of Brandt
Brandt discloses playing cards having numerals and blank circular and
triangular portions that distinguish indices for people who are color blind (p.
2, ll. 6-10 and 30-35).
3 We do not address the Appellant’s arguments regarding Ex parte Breslow,
192 USPQ 431 (Bd. App. 1975), Ex parte Fredlund, 2002 WL 31321750
(Bd. Pat. App. & Int. 2002) and Ex parte Brassey, 2003 WL 23013149 (Bd.
Pat. App. & Int. 2003) (Br. 14-16) because they are not binding precedent
upon this panel.
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