Appeal 2007-3545
Application 11/197,039
label” is not disclosed by Wang (Br. 7). Appellants argue that the
Examiner’s failure to give “patentable weight” to the “scent identifiers” on
label indicates that the Examiner did not read the claim as a whole (Br. 9).
We have considered all of Appellant’s arguments and find them
unpersuasive for the reasons below.
Generally, where the printed matter is not functionally related to the
substrate, the printed matter will not distinguish the invention from the prior
art in terms of patentability. In re Ngai, 367 F.3d 1336, 1339, 70 USPQ2d
1862, 1864 (Fed. Cir. 2004) citing In re Gulack, 703 F.2d 1381, 1385, 217
USPQ 401, 404 (Fed. Cir. 1983).
The dispositive issue presented in this appeal is whether the printed
matter of the label (i.e., one or two natural scent identifiers) is functionally
related to the substrate.
As the Examiner indicated in the Answer, Appellants’ position is that
the substrate is composed of the cleaning composition and the container to
which the label is affixed (Answer 5). Appellants contend that since the
“natural scent identifiers” on the label are indicative of the scent of the
composition, a functional relationship exists between the composition and
the written content (i.e., printed matter) of the label.
Appellants have not provided any authoritative support for the theory
that, when a functional relationship exists between printed matter (i.e., scent
identifiers) and a composition, the printed matter will distinguish the
invention from the prior art in terms of patentability. The authorities cited
by Appellants all relate to a functional relationship between the printed
matter and the substrate on which the printed matter is present (i.e., the label
or container) (Br. 4-5). See, Ngai, 367 F.3d at 1338-39, 70 USPQ2d at 1863-
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