Appeal 2006-1679
Application 09/853,568
ISSUES
With respect to the § 112 rejection, Appellant argues that the
Specification conveys to one of ordinary skill in the art that Appellant was in
possession of the label having only a non-textual descriptive graphic.
With respect to the § 103 rejection, Appellant argues that Griffiths
supports only the identification of the prescription medication by textual
information. Appellant further argues that the type of printed matter
represented by Appellant’s graphic icon is the type of printed matter that
may well constitute structural limitations upon which patentability can be
predicated. Appellant also argues that the Walgreens publication is not prior
art, and that Walgreens when combined with Griffiths would not disclose or
suggest the indicia being a picture or a graphic, let alone identifying a
prescription medicine.
Accordingly, there are two issues presented for this appeal. First, has
the Examiner established that claims 22-26 are based on a Specification that
lacks written description support for a label second side having only non-
textual descriptive graphic material, and secondly, has the Examiner
established the prima facie obviousness of claims 19-26?
FINDINGS OF FACT
With respect to the § 112 rejection, Appellant relies on four passages
excerpted from Appellant’s Specification. These passages are quoted on
pages 11 and 12 of the Brief. Appellant further relies on the Figures. The
first passage Appellant quotes reads as follows:
One embodiment of the present [invention] helps alleviate these
concerns by placing graphical icons on the outside of the medicine
containers, so that when the patients look at these containers he or she
will know why the medication has been prescribed. For instance, a
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