Appeal No. 98-0064
Application No. 29/043,747
effect does not affect the appearance of the design as a whole
and the impression that the design would make to the eye of a
designer of ordinary skill.”
The examiner has simply not made out a prima facie case of
obviousness. The claimed design covers all views shown in the
drawing. For example, Figure 6 shows a bottom view of the
spoiler wherein the corner edges of the rear of the spoiler
(bottom left and right in Figure 6) each have a larger radius
than the corner edges of the front of the spoiler (top left and
right in Figure 6). As appellants point out, from the bottom of
page 2 to the top of page 3 of the brief,2 the “underbelly and
the shoulder (top) of the instant invention do not at all
resemble the” Whitney reference. Also, “[n]one of the contours
in the instant invention are illustrated” by Whitney. Appellants
also note how difficult it is to view the reference.
Clearly, the single, small view the examiner points to in
Whitney is insufficient for any meaningful conclusions to be
reached regarding the overall design of the Whitney spoiler.
But, in any event, no bottom or side view of that spoiler is
shown. Thus, we do not know what the underbelly of the Whitney
spoiler looks like and we cannot tell what the specific contour
of the shoulder looks like in Whitney. Therefore, even when the
2 We note that appellants refer to the J.C. Whitney reference
repeatedly as the “J.C. Penney” reference.
3
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