Appeal 2007-0714
Application 10/651,354
imprinted on the band at regularly spaced intervals; and an algorithm by
which the appropriate digits were developed. Id. at 1382. The court found
that there was a functional relationship between the printed matter and the
substrate that was different than that disclosed by the prior art, and reversed
the Board’s conclusion to the contrary. Id. at 1387.
The claims in In re Lowry, 32 F.3d 1579 (Fed. Cir. 1994), were drawn
to a memory containing a stored data structure comprising a plurality of
attribute data objects (ADOs). Id. at 1580-81. The Board analogized the
ADO’s to printed matter, and determined that there was no functional
relationship between the printed matter, the ADOs, and the substrate, i.e., the
memory. Id. at 1582. The court reversed, finding that the data structures
were not analogous to printed matter, but instead defined functional
characteristics of the memory. Id. at 1583. Moreover, the court noted that
even if the data structures were analogous to printed matter, the “PTO did
not establish that the ADO’s, within the context of the entire claims, lack a
new and unobvious functional relationship with the memory.” Id. at 1584.
Finally, in In re Ngai, 367 F.3d 1336 (Fed. Cir. 2004), at issue was a
claim to a kit containing a buffer agent and instructions, with the only
difference being the content of the instructions. Id. at 1338. The court
distinguished its finding in Gulack, finding that the “addition of a new set of
instructions into a known kit does not interact with the kit in the same way
as the numbers interrelated with the band [in Gulack].” Id. at 1339.
Using the above cases as the framework to guide our analysis, we find
that there does not exist a new and unobvious relationship between the
printed matter, i.e., the character graphic and the active graphic, and the
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