Ex parte DAVIS et al. - Page 3




          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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