Ex parte DAVIS et al. - Page 4




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


          appellants’ tennis racquet would be readily appreciated by an               
          ordinary observer such as a purchaser.  Specifically, the                   
          ordinary observer would readily discern the differences in                  
          appearance of the throat block, the relative bulk of the frames             
          and the overall general proportions of the two designs.  This               
          being the case, we will not sustain the rejection of the design             
          claim on appeal under 35 U.S.C.  102(b) as being clearly                   
          anticipated by the Bell Catalog.                                            
               We now turn to the rejection under 35 U.S.C.  103.  As we             
          have noted above, the “ordinary designer” test is used in                   
          determining obviousness under  103.  That is, “[t]he test for              
          determining obviousness of a claimed design under 35 U.S.C.  103           
          is whether the design would have been obvious to a designer of              
          ordinary skill who designs articles of the type involved” (In re            
          Carter, 673 F.2d 1378, 1380, 213 USPQ 625, 626 (CCPA 1982)).                
          That inquiry focuses on the visual impression of the claimed                
          design as a whole and not on selected individual features.  In re           
          Borden, 90 F.3d 1570, 1574, 39 USPQ2d 1524, 1526 (Fed. Cir.                 
          1996).                                                                      
               In order to support a holding of obviousness under  103,              
          there must be a reference, a something in existence, the design             
          characteristics of which are basically the same as the claimed              
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