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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