Appeal No. 2000-2183
Application No. 29/082,343
With regard to the question of the obviousness of the
claimed design, it is well settled, as stated in Durling v.
Spectrum Furniture Co., 101 F.3d 100, 103, 40 USPQ2d 1788,
1790 (Fed. Cir. 1996):
In the design patent context, the ultimate inquiry
under section 103 is whether the claimed design
would have been obvious to a designer of ordinary
skill who designs articles of the type involved. In
re Rosen, 673 F.2d 388, 390, 213 USPQ 347, 349
(C.C.P.A. 1982). More specifically, the inquiry is
whether one of ordinary skill would have combined
teachings of the prior art to create the same
overall visual appearance as the claimed design. See
In re Borden, 90 F.3d at 1574, 39 USPQ2d at 1526.
Before one can begin to combine prior art
designs, however, one must find a single reference,
"a something in existence, the design
characteristics of which are basically the same as
the claimed design." In re Rosen, 673 F.2d at 391,
213 USPQ at 350. Once this primary reference is
found, other references may be used to modify it to
create a design that has the same overall visual
appearance as the claimed design. See In re Harvey,
12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir.
1993).
In the present case, the claimed shower cap and the shower cap
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