Appeal No. 97-1566
Application 29/033,924
Spiegel Des. 291,714 Sept. 1, 1987
Hornung, Handbook of Designs and Devices, Plate No. 1711 (1946)
p. 191.
The claim stands rejected under 35 U.S.C. § 103 as being
unpatentable over Spiegel in view of Hornung. The examiner’s
findings regarding the content of the references and the
differences between the claimed invention and Spiegel are stated
as follows (examiner’s answer, page 3):
The patent to Spiegel is cited to show a kicking
tee which is strikingly similar to that of the claimed
design except for the difference in the shape of the
outer portion.
The reference to Handbook of Design and Devices
(Figure 1711) is cited to show a shield shape which is
substantially similar in overall appearance to the
shape of the outer portion of the claimed design.
The examiner concludes that it would have been obvious to
substitute the shield shape of Figure 1711 for the outer shape of
Spiegel, and further that “by simply modifying the outer shape,
since the interior portions of the kicking tee [of Spiegel and
the claimed design] are almost identical, said modification would
produce and [sic, an] article strikingly similar in appearance to
that of the claimed design” (examiner’s answer, page 3).
In the “Response to argument” section of the answer, the
examiner offers additional views regarding the combinability of
the references. Specifically, the examiner states that “as long
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