Appeal 2006-3079
Application 10/708,033
is, the cards. Appellants’ playing cards will function as playing cards
regardless of the particular indicia printed thereon. In this respect, the case
before us is distinguishable from the situation in In re Gulack, 703 F.2d
1381, 217 USPQ 401 (Fed. Cir. 1983), wherein the claimed invention was
an educational and recreational mathematical device comprising “three key
elements: (1) a band, ring, or set of concentric rings; (2) a plurality of
individual digits imprinted on the band or ring at regularly spaced intervals;
and (3) an algorithm by which the appropriate digits are developed.” Id.,
703 F.2d at 1382, 217 USPQ at 402. The Gulack court found that the digits,
the printed matter in that case, were related to the band in two ways: “(1) the
band supports the digits; and (2) there is an endless sequence of digits —
each digit residing in a unique position with respect to every other digit in an
endless loop. Thus, the digits exploit the endless nature of the band.” Id.,
703 F.2d at 1386-87, 217 USPQ at 405. There is no such interrelationship
between Appellants’ cards and the legends and pictures printed thereon. The
legends and pictures do not exploit any characteristic of the playing cards on
which they are printed but, rather, merely convey an instruction to the player
as to the elements required in the story to be told.
We therefore conclude that the legends and pictures recited in
Appellants’ claims 4-10 do not patentably distinguish the subject matter of
the claims from the alphabet playing card deck of Dwyer. The claimed
legends and pictures being the only argued distinction between the subject
matter of claims 4-10 and Dwyer, aside from the first and second suit
limitation, which Dwyer’s two sets satisfy, as discussed above, Appellants
have failed to demonstrate error in the Examiner’s rejection of claims 4-10
as anticipated by Dwyer. The rejection is sustained.
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