Appeal 2007-1182
Application 10/020,136
CHUNG K. PAK, ADMINISTRATIVE PATENT JUDGE,
CONCURRING.
I fully agree with the majority’s view that the Examiner’s § 103
rejections should be affirmed. However, I write separately to express an
additional reason for affirming the Examiner’s § 103 rejections.
As correctly found by the majority:
There is no dispute that Micchia, like Appellants, discloses a
method of reducing reflective light glare into a human's eyes
from the human's cheeks by covering a location at which
incident direct or indirect light is likely to be reflected in the
human's eyes with a non-toxic material having a non-reflective
colored exterior surface.
Indeed, the Appellants acknowledge at page 1 of the Specification that:
Participants in athletic contest, particularly participants in
team sports such as football, soccer, baseball, and lacrosse, that
are played outside during the day, or in well lit stadium,
minimize the light that is reflected from their cheeks into their
eyes by applying conventional eye black to their cheeks.
Conventional eye black typically includes as ingredients
Vaseline, lanolin, ceresin wax, beeswax, carnauba wax, and
black oxide of iron C177499UTV. Eye black may be applied
with a finger by dipping it into a large container and wiping on
the cheeks under the eye, or applied with a marker in much the
same form that lipstick is applied.
As recognized by the Examiner, the light absorbing patch of Micchia does
not have “a shape formed within the exterior surface, wherein the shape has
a color contrasting to the non-reflective color and is configured to provide
communication…” as recited in claim 21 on appeal. According to page 2 of
the Specification, this shape configured to provide communication includes,
inter alia, an advertisement for a sports apparel or equipment manufacturer
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