Appeal No. 96-3571
Application No. 29/021,754
is our conclusion that a designer of ordinary skill would not
have derived appellant's claimed design from a consideration
of the designs portrayed in the applied references. Thus, we
cannot sustain the examiner's rejection of the design claim
under
35 U.S.C. § 103. However, we do make a new rejection of the
design claim pursuant to the provisions of 37 CFR § 1.196(b).
Our reasoning for these determinations follows.
In determining the patentability of a design under
35 U.S.C. § 103, the proper standard is whether a design would
have been obvious to a designer of ordinary skill who designs
articles of the type involved. See Avia Group Int’l, Inc. v.
L.A. Gear Calif., Inc., 853 F.2d 1557, 1564, 7 USPQ2d 1548,
1554 (Fed. Cir. 1988); In re Nalbandian, 661 F.2d 1214, 1215,
211 USPQ 782, 783 (CCPA 1981). Additionally, to support a
holding of obviousness there must be a reference, something in
existence, the design characteristics of which are basically
the same as the claimed design. Once a reference meets the
4
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007