Appeal No. 2006-3175
Application No. 10/419,601
the week on baby bottles to assist the care-giver when the bottles are to be given on
particular days of the week, to help visually track the bottles to determine if any are
missing, and to help toddlers learn the days of the week (¶ 0031 and ¶ 0008), was
recognized in the art at the time of appellant’s invention. Accordingly, it would
have been obvious to one of ordinary skill in the art at the time of appellant’s
invention to provide such indicia on the elastic bands of Luedde and to associate
such indicia with different days of the week, either to assist the care-giver when the
bottles on which they are fitted are to be given on particular days of the week, to
help visually track the bottles to determine if any are missing, or to help teach the
baby or toddler the days of the week.
With regard to claim 9, to store baby bottles containing milk or formula that
can spoil if not refrigerated during the duration of the gathering in a refrigerator
until needed and to later select and remove a baby bottle for use based upon the
identifying indicia on the band (i.e., selection of the baby bottle fitted with a band
having identifying indicia identifying contents belonging to the baby to whom it
will be offered) would have been obvious to one of ordinary skill in the art
practicing the method disclosed by Luedde.
Portions of the examiner’s answer (pp. 7-9) and appellant’s brief (pp. 7-8,
11-13, 15-17, 20-21, 24-26, and 29-30) focus on whether or not there is a new and
unobvious functional relationship, of the type discussed in In re Gulack, 703 F.2d
1381, 1384-85, 217 USPQ 401, 404-405 (Fed. Cir. 1983), between the indicia and
the substrate (elastic band) which carries the indicia in this case. We agree with
the examiner that, in this case, there is no new and unobvious functional
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