Appeal No. 97-1566
Application 29/033,924
of those features to the other. See In re Glavas, supra.
In our opinion, the modification proposed by the examiner
involves a material modification of the basic form of Spiegel’s
ornamental design. However, we find nothing in the combined
teachings of the applied references which indicates that an
ordinarily skilled designer who designs articles of the type
involved here, namely, kicking tees, would consider the
ornamental shapes depicted in the Hornung handbook to be so
related to the design of kicking tees to suggest application of a
shield shape to the outer shape of the article depicted in the
Spiegel patent. The examiner has provided no cogent line of
reasoning which would suggest or justify such a substantial
change in the basic form of the kicking tee design of Spiegel, in
our view. Rather, the examiner appears to be of the view that it
would have been per se obvious to one ordinary skill in the
kicking tee design art to substitute any known geometric shape
for the rounded oval shape of Spiegel notwithstanding that there
is no suggestion in the prior art to combine the references and
their visual appearances. This is just the sort of mechanical
approach to the question of obviousness criticized by the court
in In re Harvey, 12 F.3d 1061, 1065, 29 USPQ2d 1206, 1209 (Fed.
Cir. 1993) (“If we adopted the logic of the Board . . . each and
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