Appeal 2006-1679
Application 09/853,568
We note the argument in the first full paragraph on page 14 of the
Brief. Appellant argues that Griffiths does not disclose the various features
recited in the claims on appeal. However, we note that the rejection on
appeal is one for obviousness and is based on the collective teachings of the
references. Thus, an attack on an individual reference as not disclosing
features clearly present in another reference is unavailing.
Furthermore, we are in agreement with the Examiner that the exact
printed material found on the label is non-functional descriptive matter that
is not functionally related to the substrate as in Gulack. Though Appellant
argues In re Miller, 418 F.2d 1392, 164 USPQ 46 (CCPA 1969) in the Brief,
Appellant does not state how the graphic icon on the claimed label functions
any differently than the labels disclosed in Griffiths and in Walgreens.
Appellant’s claimed label merely identifies the contents of the bottle to the
user. This is the same function as the labels disclosed in Walgreens and
Griffiths. It matters not, that the prior art uses letters and numbers and the
Appellant uses symbols, if the functioning of the printed matter is the same.
The printed matter in this instance merely serves to indicate the contents of
the bottle. Since the subject matter of all claims on appeal, i.e., claims 19-
26, differs from the Griffiths disclosure only with respect to the printing on
the label, all claims are unpatentable over Griffiths under § 103.
Finally, we note Appellant’s argument that the Walgreens webpage
printout is not prior art. As far as we can determine, Appellant does not give
a reason why Walgreens should not be considered prior art. Appellant’s
conclusory statements in this regard are not credited.
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