Appeal No. 1995-4961
Application No. 29/014,077
We find, however, that Gagon does not constitute “a basic
reference,” for it fails to illustrate “design characteristics
which are basically the same as the claimed design.” In that
regard, we note that the tennis racquet shown in Gagon has a head
defining a round stringing design, rather than the claimed tear
drop stringing design. The round stringing area is formed by
providing a throat piece that is not present in the claimed
squash racquet design. In addition to these significant
differences in overall appearance, the examiner has not viewed
the tennis racquet described in Gagon from the perspective of the
designer of ordinary skill of the articles involved. See Answer,
page 4. According to appellant, the Rule 132 declaration of
Davis and testimony of Mr. Maxton and Mr. Morgan establish that
the tennis racquet illustrated in Gagon would not have been
viewed in the same manner as the examiner from the perspective of
the designer of ordinary skill. See Brief, pages 10-15. The
examiner, however, improperly ignores such evidence without
explaining the deficiency of the declaration and testimony. See
Answer, page 4. Therefore, we conclude that the examiner has not
established a prima facie case of obviousness. Accordingly, we
reverse the examiner’s § 103 rejection of the sole claim in this
application.
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