Appeal No. 95-3852
Application 07/885,945
is to be made under 35 U.S.C. § 103, the proper standard is
whether the design would have been obvious to a designer of
ordinary skill who designs articles of the type involved. See
In re Nalbandian, 661 F.2d 1214, 1217, 211 USPQ 782, 785 (CCPA
1981). Furthermore, as a starting point for a § 103 rejection,
there must be a reference, a “something in existence,” the design
characteristics of which are basically the same as the claimed
design:
Thus there must be a reference, a
something in existence, the design
characteristics of which are basically the
same as the claimed design in order to
support a holding of obviousness. Such a
reference is necessary whether the holding is
based on the basic reference alone or on the
basic reference in view of modifications
suggested by secondary references.
Rosen at 673 F.2d 391, 213 USPQ 350.
The examiner’s position is based upon the view that elements
26 and 30 comprise the claimed shutter for an optical disc
cartridge. Page 5 of the answer indicates that element 28, which
is one side of two sides (26 and 28) of the overall shutter 22 in
Shiba’s various figures was not a part of the rejection. This
view is well taken by the examiner inasmuch as column 3, lines 64
through 68 of Shiba indicates that the shutter assembly may be
3
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007