Appeal No. 2006-3175
Application No. 10/419,601
relationship between appellant’s indicator and the elastic band on which it is
carried as was the case in Gulack. Unlike the particular sequence of digits in
Gulack, in which each digit resided in a unique position with respect to every other
digit in an endless loop, thereby exploiting the endless nature of the band on which
they were carried to permit the endless band to perform as an educational
mathematical device, the elastic band of appellant’s invention would function
equally well as a labeling system for identifying the contents of a baby bottle on
which it is fitted, regardless of the particular type of indicator or indicia carried
thereon. We find this inquiry to be of very little relevance, however, in the present
case, wherein there is no difference between the indicator claimed and disclosed by
the appellant and the identifying indicia disclosed in the prior art. Inasmuch as the
claim limitations with regard to the indicator are taught or suggested by Luedde,
either alone or further in view of Murphy, as discussed above, there is no need to
determine whether a new and unobvious functional relationship exists between the
elastic bands and the indicator carried thereon so as to patentably distinguish the
claimed subject matter from the prior art.
CONCLUSION
To summarize, the decision of the examiner to reject claims 1-20 is reversed
and new grounds of rejection are entered pursuant to 37 CFR § 41.50(b).
This decision contains new grounds of rejection pursuant to 37 CFR §
41.50(b). 37 CFR § 41.50(b) provides "[a] new ground of rejection pursuant to
this paragraph shall not be considered final for judicial review."
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