Ex parte DAVIS et al. - Page 2




                Appeal No. 96-3643                                                                                                            
                Application No. 29/008,022                                                                                                    


                         The reference relied upon by the examiner is:                                                                        
                Bell Catalog                              Racket “C” (p. 363)                               1980                              
                         The claim stands rejected under 35 U.S.C.  102(b) as being                                                          
                clearly anticipated by the Bell Catalog  and 35 U.S.C.  103 as  3                                                            
                being unpatentable over the Bell Catalog.                                                                                     
                         The examiner’s rejections are explained on pages 3 and 4 of                                                          
                the answer.                                                                                                                   
                                                                 OPINION                                                                      
                         Having carefully considered the respective positions                                                                 
                advanced by the appellants in the brief and supplemental brief                                                                
                and by the examiner in the answer and supplemental answer, it is                                                              
                our conclusion that neither of the above-noted rejections is                                                                  
                sustainable.                                                                                                                  
                         Considering first the rejection under 35 U.S.C.  102(b), we                                                         
                initially note that the “ordinary observer” test (as                                                                          
                distinguished from the “ordinary designer” test used in                                                                       
                determining obviousness under 35 U.S.C.  103) is applicable in                                                               


                         2(...continued)                                                                                                      
                of a single inventive concept within the meaning of In re                                                                     
                Rubinfield, 270 F.2d 391, 123 USPQ 210 (CCPA 1959), cert. denied,                                                             
                362 U.S. 903 (1960).                                                                                                          
                         3This rejection was set forth as a new ground of rejection                                                           
                in the answer.                                                                                                                
                                                                      2                                                                       





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