Appeal No. 2000-1905
Design Application 29/095,094
wrenches and similar devices with gripping knobs, indicating
that there are many variations which perform the function but
have different appearance (Brief, p. 4).
The Examiner states (Examiner's Answer, Paper No. 10,
p. 3): "In order to overcome a rejection of the claim under
35 U.S.C. 171 as lacking in ornamentality, it is necessary
that the motivation of the inventor be the basis for the
evidence that the design was created with 'thought of
ornament.' In re Carletti, 140 USPQ 653, 655 (CCPA 1964)."
The Examiner states that the declaration by Mr. Jacoff "does
not convincingly establish knowledge of the ornamental intent
behind the creation of the design; however, to the extent that
the declaration be accepted, the mere description of pyramidal
gripping knobs and the symmetry of their placement does not
characterize these features as having sufficient effect on the
overall appearance to render the claimed design as primarily
ornamental" (Examiner's Answer, pp. 3-4).
The Examiner has failed to persuade us that the design is
directed by the use of the article, so as to be primarily
functional. Functional considerations do not demand only this
Statement renumbered as Paper No. 1½.
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