Appeal No. 2000-2183
Application No. 29/082,343
Vance et al. (Vance) 5,455,970 Oct. 10, 1995
Adkins 5,477,561 Dec. 26, 1995
The claim stands finally rejected under 35 U.S.C. §
103(a) as unpatentable over Vance in view of Owen and Adkins.
We note initially that the examiner has required
appellant to cancel Fig. 5 on the ground that it is improper
in that it shows the interior construction of the stretch band
and does not concern the external appearance of the article,
the design of which is claimed. Although appellant argues the
merits of this requirement in the brief, it is a matter which
is not within our jurisdiction to review under 35 U.S.C. §§
7(b) and 134, since it does not relate to a matter involving
the rejection of the claim. See In re Hengehold, 440 F.2d
1395, 1340, 169 USPQ 473, 480 (CCPA 1971), and cf. Ex parte
Milner, 21 USPQ 589, 590 (Bd. Apps. 1933).
Turning to the rejection under § 103(a), appellant
describes the claimed invention on page 3 of the brief as:
a shower cap in which the dominant feature of the
design is a wide, smooth band at the bottom of the
shower cap. The design characteristics lie in two
aspects, that the band is substantially wider than
has been known before and that the surface of the
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