Appeal No. 2003-0043
Application 29/065,720
panel. Thus, we do not see how a designer of ordinary skill
providing the projecting portion of the Gillette container with
side corner cuts “similar to” those suggested in Smyth could
arrive at a paperboard container having the distinct ornamental
appearance of the container claimed by appellant.
In the final analysis, we are of the opinion that the
collective teachings of the applied prior art would not have led
the designer of ordinary skill in the art to modifications of the
Gillette container which would have resulted in a container
having an overall appearance and creating a visual impression
like that of the paperboard container claimed by appellant. It
is our view that the evidence before us considered as a whole
would simply not have been suggestive of the distinct ornamental
appearance of appellant’s claimed container design.1 For that
reason, we will not sustain the examiner's rejection of
appellant’s design claim under 35 U.S.C. § 103.
1 In reaching this conclusion, we have also considered the
teachings to be derived from the APA, relied upon by the examiner
to provide the above modified Gillette container with overall
proportions like that seen in the APA. However, the teachings of
the APA do not overcome or provide for the deficiencies we have
noted above in the basic combination of the Gillette package and
Smyth.
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