Ex parte DAVIS et al. - Page 5

          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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