Appeal No. 98-1900
Application D-07/715,260
The claim stands further rejected under 35 U.S.C. § 171
as being directed to nonstatutory subject matter regarding
design claims.
Reference is made to the brief and answer for the
respective positions of appellants and the examiner.
OPINION
We affirm.
The controlling case for the issue presented under § 171
is Ex parte Strijland, 26 USPQ2d 1259 (Bd. Pat. App. &
Interferences 1992) wherein it was held that icons, of the
type of interest herein, per se, are not protectable by design
patent because 37 CFR §§ 1.152 and 1.153(a), consistent with
35 U.S.C. § 171, require that the design must be applied to an
article of manufacture since the “factor which distinguishes
statutory design subject matter from mere picture or surface
ornamentation per se (i.e., abstract designs) is the
embodiment of the design in an article of manufacture.”
Strijland, 26 USPQ2d 1259, 1262.
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