Ex parte DAVIS et al. - Page 6

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

                    design expedient to one of ordinary skill in                      
                    the art.  The Bell catalog page also                              
                    discloses various tennis rackets with varying                     
                    throat widths which shows that this change in                     
                    size is obvious.                                                  
                         Appellant asserts that the “Bell racket                      
                    head is smaller and has a larger aspect ratio                     
          (length/width) and the shaft is longer in comparison with the               
          claimed design.  Also, the shaft and head frame portions are                
          thinner in the claimed design than the frame of the Bell racket             
          “C”.”.  Again these differences are minor changes in proportions            
          or sizes and are not seen to be patentable advances in the racket           
          art.  In re Stevens, [173 F.2d 1015,] 81 USPQ 362 [(CCPA 1949)],            
          was cited to support the Examiner’s contention that changes in              
          proportions was obvious and not a basis for patentability.                  
          [Answer, pages 4 and 5.]                                                    
               From the above it is readily apparent that the examiner                
          recognizes that significant differences exist between the claimed           
          design and that of tennis racquet “C” of the Bell Catalog but,              
          nevertheless, seeks to dismiss such differences as changes in               
          proportion that are “obvious and not a basis for patentability,”            
          citing Stevens as authority.  To the extent that the examiner is            
          attempting to extract from Stevens a hard and fast rule that all            
          changes in proportion are per se unpatentable advances, we are of           
          the opinion that the examiner’s reliance upon this authority is             
          misplaced inasmuch as the court therein made it clear that the              
          changes in proportion there involved did not result in an over-             
          all appearance which was substantially different.                           


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