Appeal No. 2001-0466
Application No. 29/112,628
The Exposures picture frame also comprises rectangular
inner and outer frames, which, in contrast to appellant's
claimed design (Figures 1-3), are non-square. Like
appellant's claimed design (Figures 1-3), the area enclosed by
the inner frame appears to be about one-fourth the area of the
outer frame.
The test for determining obviousness of a claimed design
under 35 U.S.C. § 103 is whether the design would have been
obvious to a designer of ordinary skill who designs articles
of
the type involved. See id. and In re Nalbandian, 661 F.2d
1214, 1216, 211 USPQ 782, 784 (CCPA 1981). Furthermore, in
order to support a holding of obviousness under § 103, there
must be a reference, a something in existence, the design
characteristics of which are basically the same as the claimed
design. See In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350
(CCPA 1982).
Even assuming, arguendo, that Burnes is a Rosen type
reference and further that Exposures would have suggested
modification of the Burnes picture frame so as to make the
area enclosed by the inner frame smaller as a proportion of
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