Appeal No. 98-1694
Application 07/715,261
icon, itself, for use with or on a computer display, which was
of interest. The original claim, too, was for an “ACCESS
CONTROL ICON” which was only “FOR” a computer display. Thus,
again, the display was never intended, in the original
disclosure, to form any part of the invention. The originally
disclosed and claimed design was clearly for the icon, per se,
and not for any embodiment of that icon in a display as an
article of manufacture. We find that there clearly was no
disclosure in the specification, as originally filed, for the
now claimed design for a computer display.
Because we sustain the examiner’s rejection of the claim
under 35 U.S.C. § 112, first paragraph, the broken lines
around the icon in the drawings do constitute new matter and
are not permissible. Accordingly, with the original drawings
then before us, the design claim is clearly drawn to an icon,
per se and
such a claim, under Strijland, is directed to nonstatutory
subject matter under 35 U.S.C. § 171. Accordingly, we also
sustain the rejection of the claim under 35 U.S.C. § 171.
Moreover, we note that the panel in Strijland indicated
that the claimed design therein would have been deemed to
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