Appeal No. 96-3571
Application No. 29/021,754
We make the following new rejection pursuant to the
provisions of 37 CFR § 1.196(b).
The design claim is rejected under the judicially
created doctrine of obviousness-type double patenting in view
of the design claim of Design Patent No. 348,395 to Bertolini.
While the claimed design of Bertolini differs from the instant
design claim in that the former includes the upper portion of
the jar and a cap for the jar as part of the overall design,
the claimed design on appeal would have been obvious, within
the meaning of 35 U.S.C. § 103, in view of the lower portion
of the jar of the design of Bertolini, which portion is
identical in overall appearance to appellant's claimed jar
design. While the claimed design on appeal is not identical
in overall appearance to the combined jar and cap design of
Bertolini, it is our opinion that the designer of ordinary
skill in the art would have found the overall appearance of
the design of the jar portion to be obvious therefrom by
merely removing the cap and portion of the jar covered
thereby.
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