Appeal No. 96-3568
Application 29/009,122
observer takes the new design for a
different, and not a modified already-
existing, design.
It therefore follows that, in order to establish lack of novelty
(i.e., anticipation), the ordinary observer must take the general
or ensemble appearance-effect of the design under consideration
to be the same as that of an already-existing design (even though
a degree of difference may actually be present).
In the present case, for the reasons aptly expressed by
appellant on pages 3-4 of the brief, we do not agree with the
examiner that the differences between the claimed design and the
cap seen in Saito involve merely minor variations which are
insufficient to distinguish the overall appearance of the claimed
design from that of the prior art cap of Saito. Stated
differently, and in accordance with the test for novelty in
designs, we are of the opinion that the ordinary observer would
view the general or ensemble appearance-effect of the claimed
design to be different from that of the cap seen in Saito.
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Last modified: November 3, 2007