Appeal No. 96-3643
Application No. 29/008,022
determining the presence of novelty under § 102. See In re
Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 785 (CCPA 1981).
With respect to the “ordinary observer” test for determining
whether novelty is present under § 102 the court in In re
Barlett, 300 F.2d 942, 943-44, 133 USPQ 204, 205 (CCPA 1961) set
forth (in quoting with approval from Shoemaker, Patents for
Designs, page 76):
If the general or ensemble appearance-
effect of a design is different from that of
others in the eyes of ordinary observers,
novelty of design is deemed to be present.
The degree of difference required to
establish novelty occurs when the average
observer takes the new design for a
different, and not a modified already-
existing, design.
It therefore follows that, in order to establish lack of novelty
(i.e., anticipation), the ordinary observer must take the general
or ensemble appearance-effect of the design under consideration
to be the same as that of an already-existing design (even though
a degree of difference may actually be present).
Here, we are of the opinion that the ordinary observer would
take the appellants’ design to be a different design from that
shown in the Bell Catalog. The different overall impressions
created by tennis racquet “C” of the Bell Catalog and that of the
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