Appeal No. 99-1028
Application 29/067,859
Therefore, we understand the examiner's position to be that
O'Connell's Figures 1 is the Rosen reference.
It is the examiner’s position that the only difference
between the O'Connell "mitten" shown in Figure 1 and the
claimed design is the absence of the trim around the sides and
top. The examiner suggests that
[i]t would have been obvious to one of ordinary skill in
the art at the time the invention was made to modify
O'Connell by providing it with the trim around the sides
and top as taught by Humphrey to obtain essentially the
herein disclosed and claimed design (answer, page 3).
As to appellant's argument (brief, pages 2 and 3) that
the
O'Connell mitten does not satisfy the threshold Rosen require-
ment, the examiner replies that
O'Connell is seen to be a proper Rosen reference in that,
it shows the overall appearance of the seamless mitten
with one thumb portion and separate four finger pocket
and tapered wrist as in appellant's design (answer, page
5).
We do not agree. First, we point out that O'Connell's
Figure 1 does not show a mitten design, but a piece of fabric
6 which must be combined with a thumb back 7 and a one piece
palm 8 in order to form a complete mitten having a pocket for
5
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