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.
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007