DETAILED ACTION
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-3 and 8-14 are rejected under 35 U.S.C. 103 as being unpatentable over Irwin et al. (US 10,183,213).
In respect to claim 1, Irwin Jr. et al. disclose a lottery ticket comprising: printing variable indicia 204’ on a first area of a substrate 201, the variable indicia comprising component colors selected from four different component colors (e.g. CYMK) and printing a background 204” on a second area of the substrate, the second area being adjacent to and outside the first area (Col. 9, 29-64; Fig. 4). The background 204” comprises the same four component colors, and thus includes a first component color and a different second component color (two components of CMYK), which together for “background artwork” (Fig. 4); Irwin Jr. et al. further disclose a scratch-off covering 209 covering the variable indicia 204’ (Fig. 4).
Irwin Jr. et al. further disclose a “first variable indicum”, which is any particular “letters, numbers, images or other indicia which determine whether a ticket is a winner…” (Col. 1, 28-35), but do not disclose particular colors of any of the individual indiciums, such as the “first variable indicium”, however, it would have been obvious to provide any of the individual indiciums, including the “first variable indicum” with any desired color combinations, including those omitted a particular component color (e.g. such as presenting green, which is only a blend of yellow and cyan; Fig. 4). The blending of various CMYK colors “blended in varying intensity to mimic all colors perceived by a human” is well-known. The claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art since the blending of various CMYK colors “blended in varying intensity to mimic all colors perceived by a human” is known in the art (Col. 6, 51-55). Any particular blended combination is known and obvious, including combinations with omit at least one component color. The first and second component colors are “aligned in a straight parallel line (to the side edges)”, such that if a printing error occurred, in the manner of the printer not printing the second component color, any variable indicium which did not include the first component color, would not affect that indicium.
In respect to claims 2 and 3, Irwin Jr. et al. disclose areas of the background which are not covered by a scratch-off-coating 209 (Fig. 4).
In respect to claims 8-10 and 14, Irwin et al. disclose the claimed invention or the reasons stated above. Irwin Jr. et al. additionally disclose further indicium (as is readily ascertained by one of ordinary skill in the use of multiple symbols/letters/images in providing the variable indicia). For the same reasons above, as taught be Irwin et al., any component colors may be blended to mimic any colors perceived by the human eye (including three component colors, and no fourth component color).
In respect to claims 11-13, although Irwin et al. do not disclose the level of color saturation in the background (over 5%) for each of at the plurality of colors, however printing a background with CMYK colors, at least one of the colors over 5% saturation is obvious. The claim would have been obvious because a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art, namely, using a substantially amount of color (or all colors) to create a colorful background (e.g. to enhance marketability). The only alternative (under 5% saturation for ALL colors) would lead to very drab, very light gray background, essentially wasting a four-color process.
Response to Arguments
Applicant's arguments filed 03/05/26 have been fully considered but they are not persuasive.
The applicant summarily contends that Irwin Jr. et al. do not disclose, teach, or suggest, the newly amended claim language. Although Irwin Jr. et al. does not explicitly disclose the claims, they surely teach or suggest the claims for the reasons stated above.
In plain language, the application has amended the claims to state that within the variable indicia, individual icons forming the variable indicia “first/second variable indicium” have at least one icon which does not include at least one of the four component colors (e.g. CYMK). This is not inventive. Irwin et al. explicitly states that any color can be made by blending of relative amounts of component colors. In fact, as shown in Figure 4, cyan and yellow, for example, will yield green. If a person of ordinary skill in lottery tickets wishes to make an icon green, they will use a cyan and yellow blend, omitting magenta and black. There is nothing inventive about selecting any ratios of CYMK (including omitting select component colors) to form a color.
The amendments are only drawn to this alleged distinction, and thus they are not persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE ROBERT GRABOWSKI whose telephone number is (571)270-3518. The examiner can normally be reached M-Th 8am-6pm.
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/KYLE R GRABOWSKI/Primary Examiner, Art Unit 3637
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