Appeal No. 98-2888
Application No. 29/044,927
The viewpoints of the appellants are set forth in the
Brief (Paper No. 11).
OPINION
The appellants’ design is for combined abrasive disk and
spindle for dental use. As best seen in Figures 5-7, the
design has a handle having portions of two different diameters
and ending in an angled disk holding portion that holds an
enlarged disk. As can be seen in Figures 2 and 3, the
abrasive disk has a square aperture with a single rectangular
slit extending across its width.
We begin our analysis by pointing out that the standard
for evaluating the patentability of a design is whether it
would have been obvious to a designer of ordinary skill in the
articles involved. See In re Nalbandian, 661 F.2d 1214, 1216,
211 USPQ 782, 784 (CCPA 1981). In rejecting a claim to an
ornamental design under 35 35 U.S.C. § 103, the examiner must
supply a basic design reference that bears a substantially
identical visual appearance to the claimed design. In re
Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 347, 349 (Fed Cir.
1993). That is, there must be a reference, a something in
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