Appeal No. 1996-4148
Application No. 08/327,085
whether fanciful or arbitrary "looks" of an otherwise
functionally equivalent icon renders the claims patentable,
and that is the position of the examiner that such is a matter
of design choice. The Examiner's position appears to be that
the use of icons placed on pages of a rotatable carrousel as
claimed rather than the rotatable geometric configurations,
such as cubes, pyramids or other polyhedrons disclosed by
Kreitman, would merely be a matter of design choice. This
bald assertion is made without evidentiary basis, and ignores
the functional differences between the rotating carrousel and
rotating polyhedron.
Upon a review of the Kreitman et al. reference relied
upon by the Examiner, we fail to find any explicit showing, or
any suggestion or reason to have the carrousel structure
replace the cubical, pyramid or other polyhedron structure of
Kreitman et al., or any evidence that one skilled in this art
would recognize that rotatable carrousels and polyhedrons are
art recognized substitutes.
We are not inclined to dispense with proof by evidence
when the proposition at issue is not supported by a teaching
in a
13
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007