Appeal No. 2001-0961
Application No. 08/108,133
designer of ordinary skill in the art the obviousness of the
design claim before us. Accordingly, we reverse.
Initially, we point out that in a proper rejection of a
design claim under 35 U.S.C. § 103, there is the requirement that
there must be a reference (the basic design), a something in
existence, the design characteristics of which are basically the
same as the claimed design in order to support a holding of
obviousness. In other words, the basic reference design must
look something like the claimed design. See In re Harvey, 12
F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993) and In re
Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982). Once
such a basic design reference has been established, features
thereof might reasonably be modified to achieve the claimed
design. Such modifications, however, cannot destroy fundamental
characteristics of the basic design reference.
We also keep the following principles clearly in mind when
evaluating the obviousness of a claimed design. The proper
standard under 35 U.S.C. § 103 is whether the design would have
been obvious to a designer of ordinary skill of the articles
involved. Note In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ
782, 784 (CCPA 1981). Further it is the overall appearance of a
design, that is the visual effect as a whole of the design, which
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