Appeal No. 96-3643
Application No. 29/008,022
design. Such a reference is necessary whether the holding is
based on the basic reference alone or on the basic reference in
view of modifications suggested by secondary references. See
In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
Here, we believe the examiner's selection of the Bell
Catalog to be the basic reference was appropriate inasmuch as
tennis racquet “C” depicted therein bears such a close over-all
similarity in appearance to the appellants’ design as to satisfy
the Rosen requirement of an ornamental design which is "basically
the same as" the claimed design.
We do not, however, believe that it would have been obvious
from a design or appearance standpoint to make the necessary
modifications to arrive at the appellant's design. See In re
Cho, 813 F.2d 378, 382, 1 USPQ2d 1662, 664 (Fed. Cir. 1987).
The main thrust of the examiner’s position is that:
The present claimed design is a racket of the
old monoshaft style with a larger head and slimmer
throat area. Appellant states that since the
1970's rackets were introduced with a propor-
tionally longer and wider head. In fact
Appellant claims three embodiments in his
application the difference being the size of
the head. This in itself shows that to
modify the size of the head is a well known
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