Ex Parte Gehan et al - Page 6

                Appeal 2006-3314                                                                              
                Application 09/761,322                                                                        

                      Gerstman, Concepcion and Tabor3 disclose ornamental designs4 for a                      
                cookie comprising a base cake having a three-dimensional-image thereon                        
                and a layer of confection covering at least a portion of the image, thereby                   
                forming a latent image that can be revealed by removing at least a portion of                 
                the confection.  Gerstman and Concepcion also disclose a top layer having a                   
                three-dimensional image formed thereon.                                                       
                      This Remand to the Examiner pursuant to 37 C.F.R. § 41.50(a)(1)                         
                (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286                     
                Off. Gaz. Pat. Office 21 (September 7, 2004)) is made for further additional                  
                prior art findings and further consideration of a rejection consistent with our               
                interpretation of the claim language.                                                         

                                      REVERSED and REMANDED                                                   

                sld                                                                                           

                Thaddius J. Carvis                                                                            
                102 North King Street                                                                         
                Leesburg, VA   20176                                                                          

                                                                                                             
                3 These patents, like the present application, appear to have been assigned to                
                Nabisco Brands, Inc./Kraft Food Holdings at the time of filing of the present                 
                application.                                                                                  
                4 See In re Aslanian, 590 F.2d 911, 914, 200 USPQ 500, 503 (CCPA 1979)                        
                ("[T]he specific disclosure of structure in a design patent application may                   
                inherently teach functional features.").  See also, In re Meng, 492 F.2d 843,                 
                847, 181 USPQ 94, 97 (CCPA 1974)(a claimed invention may be anticipated                       
                or rendered obvious by a reference drawing).                                                  
                                                                                                             

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