Ex Parte Ross

Board of Patent Appeals and Interferences

Apr 29, 2011

10771645 (B.P.A.I. Apr. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL EDWARD ROSS
____________

Appeal 2009-011894
Application 10/771,645
Technology Center 3700
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and STEVEN D.A.
McCARTHY, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-011894
Application 10/771,645

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STATEMENT OF THE CASE
Michael Edward Ross (Appellant) appeals under 35 U.S.C. § 134
(2002) from the Examiner’s decision rejecting claims 1-5. Specifically, the
Examiner has rejected claims 1 and 2 under 35 U.S.C. § 102(b) as being
anticipated by Schwartz (US 2,398,257, iss. Apr. 9, 1946), and has rejected
claims 3-5 under 35 U.S.C. § 103(a) as being unpatentable over Schwartz.
We have jurisdiction over this appeal under 35 U.S.C. § 6 (2002).
The Invention
Appellant’s claimed invention is directed to a package with a
removable label. See Spec. 2:12-22.
Claim 1, reproduced below, is representative of the claimed subject
matter.
1. A package comprising:
a) a chamber defined by at least one wall containing graphics;
b) a label removably affixed directly to said wall and said
graphics, said label being partially translucent so that a portion
of said wall is visible underneath said label, said label and said
wall contains graphics which complement each other, wherein
said label contains graphics which form a first part of a scene
and said wall contains graphics which form a second part of
said scene which underlies the first part of said scene; and
c) wherein said wall and said graphics adhered to said wall remain
intact when said label is removed.

SUMMARY OF DECISION
We AFFIRM.

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ISSUE
Do the picture of the movable object (e.g., dog 3) and surrounding
marginal short dark lines 6 printed on wrapper 2 of package 1 and the lines 5
printed on band 4, respectively, of Schwartz satisfy the limitations in claim 1
of the graphics of the wall and the graphics of the label which “complement
each other,” as called for in Appellant’s claim 1? See Ans. 3-4; App. Br. 5-
6. In other words, are the lines 5 of Schwartz “graphics,” and do they
complement the graphics (picture of dog 3 and marginal lines 6) underlying
the band 4? See App. Br. 5.

DISCUSSION
We agree with the Examiner that the lines 5 of Schwartz’s band 4 are
“graphics” and that they complement the graphics (picture of dog 3 with
surrounding marginal lines 6) on wrapper 2 underlying the band 4. See Ans.
4.
Schwartz describes a package 1, which may be a can, jar, or bottle,
with a printed wrapper 2 having a picture of a movable object, such as a dog
3 or lettering, and short marginal lines 6 about the object, thereon, and a
transparent band 4 wrapped around the package. Schwartz, p. 1, col. 2, ll. 3-
12, 16-17, 24-25. Schwartz’s band 4 is ruled or printed with vertical,
spaced, dark lines 5 adapted to cooperate with the short marginal dark lines
6 so that as the band 4 is moved slightly back and forth, the movable object
(dog 3 or other object, or lettering) will appear to be animated. Id., ll. 14-26.
The Examiner has construed the term “graphics” in accordance with
what the Examiner characterizes as “the universally accepted definition of
graphics.” Ans. 4. Appellant has not disputed that definition, but asserts
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Application 10/771,645

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that a skilled person would understand the term “graphics” as used in
Appellant’s Specification means “informative label graphics representing
indicia of an attractive design.” App. Br. 5-6.
Appellant’s Specification does not provide a lexicographic definition
of “graphics,” or otherwise indicate that this term is used in a manner other
than its ordinary and customary meaning, i.e., the universally accepted
meaning as asserted by the Examiner and not disputed by Appellant. While
Appellant’s Specification describes an illustration of a tree as one example
of “graphics,” or “a pleasant graphic design,” on the lower label (Spec. 4:13-
20), the Specification does not in any way restrict the form or content of the
graphics so as to narrow the scope of the term “graphics.” Additionally,
without further limitation, Appellant’s Specification describes a preferred
embodiment in which the graphics on the upper label and lower label may
form first and second parts of a scene. See Spec. 6:14-19. Accordingly, the
Examiner’s reading of the “graphics” of the label in claim 1 on the lines 5 of
Schwartz’s band 4 is based on a reasonable construction of the term
“graphics” in light of Appellant’s Specification.
The lines 5 on Schwartz’s band 4 complement the picture (the dog 3
or other object or lettering and marginal lines 6) on the wrapper 2 by making
the dog, other object, or lettering appear to be animated when the band is
moved relative to the wrapper. By cooperating with the marginal lines 6 to
make the object (or lettering) on the wrapper 2 appear to be animated, the
lines 5 and the picture and surrounding marginal lines complement one
another such that the lines 5 form a first part of the scene and the underlying
picture and surrounding marginal lines form a second part of the scene.
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Thus, we find that the lines 5 and the picture and surrounding marginal lines
complement one another as called for in claim 1.
For the above reasons, Appellant’s arguments do not persuade us that
the Examiner erred in finding that Schwartz anticipates the subject matter of
claim 1. We sustain the rejection of claim 1 and of claim 2, which Appellant
has grouped with claim 1. See App. Br. 5; 37 C.F.R. § 41.37(c)(1)(vii).
In contesting the rejection of claims 3-5 as being unpatentable over
Schwartz, Appellant merely relies on the arguments presented for claim 1.
For the reasons discussed above, these arguments do not persuade us that the
Examiner’s rejection of claims 3-5 should be reversed. We sustain the
rejection.

DECISION
The Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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Application 10/771,645

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