Appeal No. 2001-0466
Application No. 29/112,628
The examiner's rejection overlooks an important
difference between appellant's claimed design and the Burnes2
picture frame. The Burnes picture frame includes inner and
outer frames which are rectangular (i.e., having four sides
and four right angles ) but not square, in that the height3
dimension is noticeably larger than the width dimension. We
do not share the examiner's opinion (answer, page 4) that the
difference in shape (square versus rectangular, non-square)
between the claimed design and the Burnes picture frame is de
minimis in nature and unrelated to the overall aesthetic
appearance of the design. On the contrary, it is our opinion
that this difference does affect the appearance of the claimed
design as a whole and the impression that the design would
make to the eye of a designer of ordinary skill. Cf. Ex parte
Pappas, 23 USPQ2d 1636, 1638 (Bd. Pat. App. & Int. 1992) and
In re Carter, 673 F.2d 1378, 1380, 213 USPQ 625, 626 (CCPA
1982).
While, as discussed above, the claimed design encompasses two2
embodiments, the examiner's rejection focuses primarily on the embodiment of
Figures 1-3 having the square inner frame.
3Webster's New World Dictionary, Third College Edition (Simon &
Schuster, Inc. 1988).
4
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