Appeal No. 98-0919
Application 29/042,395
Before one can begin to combine prior art designs
however one must find a single reference, "a
something
in existence, the design characteristics of which are
basically the same as the claimed design." In re
Rosen, 673 F.2d [388,] 391, 213 USPQ [347,] 350
[(CCPA 1982)]. Once this primary reference is
found, other references may be used to modify it to
create a design that has the same overall visual
appearance as the claimed design. See In re Harvey,
12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir.
1993). These secondary references may only be used
to modify the primary reference if they are "so
related [to the primary reference] that the
appearance of certain ornamental features in one
would suggest the application of those features to
the other." In re Borden, 90 F.3d [1570,] 1575, 39
USPQ2d [1524,] 1526-27 [(Fed. Cir. 1996)].
Appellants contend that Cummings does not constitute a
so-called "Rosen reference". We agree. In our view, the rod
holder disclosed by Cummings does not have basically the same
design characteristics as the design here claimed. In
particular, we consider that the bend in Cummings' rod 18, and
the base plate 16 at the lower end of the rod, together cause
the visual effect as a whole of the Cummings holder not to be
"basically the same" as the visual impression created by
appellants' claimed design.
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