Appeal 2006-1679
Application 09/853,568
Here again we find open-ended terminology, viz., while the label system
includes the placement of an icon, it does not indicate that only an icon is
present on the label.
The last quoted passage from Appellant’s Specification states that
One embodiment of iconic label 30 includes a printable media 32
upon which a graphical icon 34 is printed or otherwise represented
. . . . Graphical icon 34 upon icon label 30 is selected to be indicative
of either the medicine contained within receptacle 20 or its intended
use. Icon 34 may be selected from a wide assortment of graphical
depictions that indicate the contents of receptacle 20. . . .
Here again, as with Example 3, we find only open-ended language, with no
indication that the label contains only a graphical or iconic depiction. We
disagree with Appellant that these quotations make clear that the label is a
pictorial or graphic label and does not include any textual subject matter.
Appellant further refers to the Figures in Appellant’s application. We
find the Figures to be so general that they are useless in providing evidence
in favor of Appellant’s position. Figures 1 and 2 show primary labels 16 and
26 as entirely blank. Certainly it cannot be said that Appellant contemplates
providing the primary label of the prescription medication entirely blank.
This indicates to us Appellant has left off all textual material in the drawings
in order to simplify the figures. Since Appellant has left all textual material
out of the figures, we are unable to credit Figure 3 as conveying only an icon
with no textual material thereon. Furthermore, we merely note the
Examiner’s remarks that the z’s in Figure 3 are textual material.
Turning now to our findings with respect to the obviousness rejection
on appeal, we note that Griffiths discloses a label for describing prescription
medication contained in a prescription medication bottle. The label has both
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