Appeal No. 96-3622
Application 29/019,382
design. Futino clearly shows only one sphere. The broadest or
simplest embodiment of the claimed invention is depicted in
Figures 17 through 24 which show two stacked spheres. Since the
examiner has presented evidence in Futino of only part or one
half of a thing in existence, the design characteristics which
are required to be basically the same, the examiner’s position
appears to also only present components of a claimed design.
In re Cho, supra, indicates that an obviousness rejection is not
appropriate when only the components of a claimed design are
present but not its overall appearance in the prior art relied
upon.
The examiner’s basic rationale that it would have been
obvious to the ordinary designer to have varied the number of
spheres is further misplaced. As discussed in In re Harvey,
supra, the examiner’s rationale appears to be utilizing design
concepts. The examiner’s basic rationale may have some place in
utility patent application analyses, but not in designs. The
examiner’s evidentiary void cannot be filled by a conceptualized
approach.
In order for us to sustain the examiner’s rejection under
5
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007