Appeal 2006-1533
Application 10/607,472
There is no dispute as to whether it would have been obvious to one of
ordinary skill in the art to put Brandt’s indicia on Napolitano’s cards. The
Appellant argues that Brandt discloses, at most, indicating what index is
being played, not its intensity (Br. 21). The Appellant’s indicia are
nonfunctional descriptive material because without the indicia the cards still
would function as cards, and without the cards the indicia could be placed on
any other substrate. Hence, the Appellant’s indicia do not patentably
distinguish the Appellant’s cards from Napolitano’s cards having Brandt’s
indicia.
We therefore are not convinced of reversible error in the Examiner’s
rejection over Napolitano in view of Brandt.
Rejection over Napolitano in view of
Brandt and Howard
Howard discloses a card game having joker cards (10; p. 2, ll. 82-85;
figs. 3 and 4) which the Examiner relies upon as corresponding to the
Appellant’s wild cards (Answer 6).
There is no dispute as to whether it would have been obvious to one of
ordinary skill in the art to include Howard’s joker cards among Napolitano’s
cards. The Appellant argues that “neither Howard, Brandt, or [sic]
Napolitano, alone or in combination, disclose or suggest a plurality of
uniquely colored cards, cards having hue and intensity indicia, or a
chromatic wheel” (Br. 21). That argument in not persuasive for the reasons
given above regarding the rejections over Napolitano and over Napolitano in
view of Brandt.
Hence, we are not convinced of reversible error in the Examiner’s
rejection over Napolitano in view of Brandt and Howard.
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