Appeal No. 2000-1905
Design Application 29/095,094
Procedure § 1504.01(c). The reasoning specific to this design
is as follows (Paper No. 2, p. 2):
The following evidence establishes a prima facie
case of lack of ornamentality:
‚ The claimed design appears to be a plain wrench
strap having projections for gripping purposes. The
appearance of the design when evaluated in light of
the examiner's knowledge and a review of the prior
art does not evidence that the design was "created
for the purpose of ornamenting" the article in which
it is embodied and, therefore, the claim is not
directed to statutory subject matter
OPINION
Legal standards for "ornamental"
The function of the article itself must not be confused
with "functionality" of the design of the article. Avia
Group Int'l, Inc. v. L.A. Gear California, Inc.,
853 F.2d 1557, 1563, 7 USPQ2d 1548, 1553 (Fed. Cir. 1988)
(distinguishing the functionality of the feature from the
design of the feature). "An article of manufacture
necessarily serves a utilitarian purpose, and the design of a
useful article is deemed to be functional when the appearance
of the claimed design is 'dictated by' the use or purpose of
the article." L.A. Gear v. Thom McAn Shoe Co., 988 F.2d 1117,
1123, 25 USPQ2d 1913, 1917 (Fed. Cir. 1993) (quoting
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