Appeal No. 96-3622
Application 29/019,382
The examiner has relied upon the following reference:
Futino Des. 325,751 Apr. 28, 1992
The claim stands rejected under 35 U.S.C. § 103. As
evidence of obviousness, the examiner relies upon Futino alone.
We refer to the briefs and the answers for the respective
positions of the appellant and the examiner.
OPINION
Initially, we note that the single claim at bar covers
alternative embodiments of a single inventive concept. In re
Rubinfield, 270 F.2d 391, 396, 123 USPQ 210, 214 (CCPA 1959),
cert. denied, 362 U.S. 903, 124 USPQ 535 (1960). The prosecution
history reflects this. Therefore, the rejection under 35 U.S.C.
§ 103 is proper if the prior art demonstrates the obviousness of
just one of appellant’s alternative embodiments. Whether the
prior art would have rendered obvious the other embodiment(s) is
irrelevant. Ex parte Wolf, 152 USPQ 71, 72 (Bd. App. 1965).
We reverse the rejection of the design claim on appeal under
35 U.S.C. § 103 in light of the examiner’s reliance upon Futino
alone.
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