Ex Parte Brandt

Patent Trial and Appeal Board

Dec 31, 2013

11047097 (P.T.A.B. Dec. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte THORSTEN BRANDT
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Appeal 2011-009012
Application 11/047,097
Technology Center 3700
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Before: PATRICK R. SCANLON, NEIL T. POWELL, and
BEVERLY M. BUNTING, Administrative Patent Judges.

BUNTING, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
1-14 and 16-18. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to packages for feeding implements with
pictorial representations indicating use by children of different stages of
development. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An array of feeding implement products, the array
comprising:
a first feeding implement including a structural feature
adapted for use during a first stage of development;
a first package enclosing the first feeding implement;
a second feeding implement including a structural feature
adapted for use during a second stage of development;
a second package enclosing the second feeding
implement;
a first pictorial representation and a second pictorial
representation disposed on the first package wherein the first
pictorial representation is highlighted, the first pictorial
representation depicting a first baby, the use of the structural
feature of the first feeding implement by the first baby, and a
first caregiver, wherein the first baby is represented as
corresponding to the first stage of development and wherein the
first caregiver is represented as providing a first degree of
assistance to the first baby corresponding with the first stage of
development, and the second pictorial representation depicting
a second baby, the use of the structural feature of the second
feeding implement by the second baby, and a second caregiver,
wherein the second baby is represented as corresponding to the
second stage of development and wherein the second caregiver
is represented as providing a second degree of assistance to the
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second baby corresponding with the second stage of
development; and
the second pictorial representation and the first pictorial
representation disposed on the second package wherein the
second pictorial representation is highlighted.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Takahashi
Ronn
Murphy
US 6,568,530 B2
US 6,648,864 B2
US 2003/0041489 A1

May 27, 2003
Nov. 18, 2003
Mar. 6, 2003

REJECTION
The Examiner made the following rejection:
Claims 1-14 and 16-18 under 35 U.S.C. § 103(a) as unpatentable over
Takahashi, Murphy, and Ronn. Ans. 4-6.

ANALYSIS
Obviousness Rejection: Claims 1-14 and 16-18
Takahashi, Murphy, and Ronn
Appellant argues claims 1 and 11 together. App. Br. 4-7. We select
claim 1 as representative, treating claim 11 as standing or falling with
representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
The Examiner finds that Takahashi teaches the required elements of
claim 1 except for disclosing that the feeding implements are the human
physical development products, or pictorial representations pertaining to
stages of development. Ans. 4. Relying on Murphy to disclose a first
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feeding element 10 adapted for a first stage of development and a second
feeding element adapted for a second stage of development, the Examiner
reasons it would have been obvious to modify Takahashi’s general human
physical development packaged array to include implements of different
stages of feeding development, since “one of ordinary skill in the area of
child development commodities would have been able to apply the basic
principles of Takahashi et al. to various implements employed in stages of
human physical development, such as feeding implements as disclosed by
Murphy et al.” Id at 4-5. Additionally, the Examiner determines it would
have been obvious “to provide the array of products in general, as claimed
by Takahashi et al. as a plurality of feeding implements as claimed, as such a
modification would predictably provide the same functional result for
various commodities.” Id. at 5. Further, the Examiner relies on Ronn to
disclose “pictorial representations depict[ing] the particular use of the
particular implement in different stages of development,” with “the actual
use being depicted being demonstrative of the intended use of the implement
at a particular stage of development of a child.” Id.
We initially address Appellant’s arguments that the Examiner erred:
by not giving patentable weight to the claimed images; by maintaining that
the claimed images are printed matter; and by not considering the claims as a
whole. App. Br. 6-7. Citing In re Gulack,1 Appellant asserts there is a
particular relationship between the claimed structure of the feeding
implements, the pictorial representations, and packaging, such that “the
relationship of the claimed pictorial representations with the remaining
structural elements improves the performance of the feeding implements by

1 703 F.2d 1381, 1384, 1385 (Fed. Cir. 1983).
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helping consumers readily identify and appropriately choose feeding
implements that are suitable for children in particular stages of
development.” App. Br. 6, citing Spec. 3, ll. 3-17.
Appellant cites Gulack, for the proposition that “[d]ifferences between
an invention and the prior art cited against it cannot be ignored merely
because those differences reside in the content of the printed matter.” Id.
However, Gulack also holds that the Patent Office need not give patentable
weight to descriptive material that does not have a new and unobvious
functional relationship with the substrate.2
While we have carefully considered Appellant’s position that a
relationship exists between the pictorial representations and the feeding
implements, the facts before us in the present appeal are closer in nature to
those in Ngai and AstraZeneca than in Gulack. The claimed pictorial
representations are susceptible only to mental interpretation, i.e., helping
consumers readily identify and appropriately choose feeding implements
that are suitable for children in particular stages of development. Further,
the claimed array of feeding implement products can serve the same function
of use in feeding with or without the pictorial representations, and removing
the packaging with pictorial representations would not change the
functionality of the feeding implement. Based on the record before us, the
relationship on which Appellant relies is based on the mental interpretation
of the consumer to “readily identify and appropriately choose feeding
implements that are suitable for children in particular stages of
development” and not a functional relationship between the printed matter

2 703 F.2d at 1386; see also AstraZeneca LP v. Apotex, Inc., 633 F.3d 1042,
1065 (Fed. Cir. 2010); In re Ngai, 367 F.3d 1336, 1338 (Fed. Cir. 2004).
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and the substrate. App. Br. 7. Moreover, the inclusion of information about
the contents of the known packaging/feeding implements does not
distinguish the present situation over the holding in Ngai, in which the
Federal Circuit decided that the inventor was “not . . . entitled to patent a
known product by simply attaching a set of instructions to that product.” 3
As such, we agree with the Examiner’s determination that the claimed first
and second pictorial representations are non-functional descriptive material
and are not entitled to patentable weight.
Appellant also argues that the combination of Takahashi, Murphy, and
Ronn does not “teach or suggest every element of the claims.” App. Br. 4.
According to Appellant, the illustrated structural features of Takahashi are
only used to communicate information about the target user, and “bear no
relationship to structural features on the items of Takahashi (e.g. diapers).”
App. Br. 4, citing Takahashi, col. 9, ll. 53-65; figs. 5A-5E. Since we
determined that the claimed pictorial representations are non-functional
descriptive material (i.e., images to help consumers readily identify and
appropriately choose feeding implements that are suitable for children in
particular stages of development), Appellant does not apprise us of error in
the Examiner’s finding that Takahashi discloses the broader concept of
general commodities, which encompasses feeding implements of different
developmental stages. We note that the claimed pictorial representations,
like the label of Takahashi, enable purchasers or consumers to identify
suitable commodity products. See Takahashi, Abst.
With respect to Murphy, Appellant argues that Murphy does not
disclose the depiction of the use of structural features of drinking cups for

3 Ngai, 367 F.3d at 1339.
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different stages of development. App. Br. 5, citing Murphy, Abst; paras.
[0001], [0009]-[0014], [0028]; figs. 1-7. Appellant’s assertion of error is not
convincing, as the Examiner reasonably determined that Murphy
demonstrates that it is known to provide an array of feeding implements (i.e.,
baby age drinking cups) for babies of different developmental stages. Ans.
7. Further, Appellant contends that Ronn discloses an array of disposable
absorbent articles intended to show a wearer’s stage of development, and
does not disclose the depiction of the use by babies or children of structural
features of feeding implements adapted for different stages of development.
App. Br. 5. Again, Appellant’s assertion of error is not convincing, as the
Examiner reasonably explains how Ronn discloses that it is known to use
pictorial representations that includes a commodity subject, subject
caregiver, and commodity. Ans. 8, citing Ronn, figs. 1, 2a.
For these reasons, Appellant’s individual attack of the references is
not convincing. Moreover, Appellant does not point to any difference
between the language of claim 1 and the cited references that would change
the substance of our analysis regarding the accuracy of the Examiner’s
findings and conclusion of obviousness.
Appellant also asserts that the Examiner has not provided reasoning as
to why a skilled artisan would have modified the disclosure of Takahashi
using Murphy and Ronn. App. Br. 6. Appellant’s assertion of error is not
persuasive since the Examiner expressed how modifying the array of
packaged developmental commodities of Takahashi to include implements
of different stages of feeding development, including the feeding implement
commodity of Murphy “would predictably provide the same functional
result for various commodities.” Ans. 5. Additionally, the Examiner
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reasons it would be obvious to apply Ronn’s pictorial representations
pertaining to the use of a commodity in conjunction with a baby and a
caregiver, to the claimed pictorial representation of a feeding implement,
baby and caregiver, since “any differences in particularity would pertain at
most to printed matter differences.” Ans. 8.
Since the Examiner has provided a reason to combine the teachings of
Takahashi, Murphy, and Ronn, Appellant’s arguments do not apprise us of
error in the Examiner’s conclusion of obviousness. Accordingly, we sustain
the rejection of claim 1 and claim 11 falls therewith.
Appellant submits that dependent claims 2-10, and 17; and 12-14, 16,
and 18 are patentable for the same reasons asserted with respect to claims 1
and 11, respectively. App. Br. 7. Since the rejection of claims 1 and 11 is
sustained, we likewise sustain the rejections of claims 2-10, and 17; and 12-
14, 16, and 18.

DECISION
For the above reasons, the Examiner’s rejection of claims 1-14 and
16-18 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)(1)(iv).

AFFIRMED
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