Appeal No. 96-3643
Application No. 29/008,022
As the court in In re Blum, 374 F.2d 904, 907, 153 USPQ 177,
179-180 (CCPA 1967) stated:
there are no portions of a design which are
“immaterial” or “not important.” A design is
a unitary thing and all of its portions are
material in that they contribute to the
appearance which constitutes the design.
The appearance may be the result of a peculiarity of
configuration, or of ornamentation, or of both. See Gorham Mfg.
Co. v. White, 81 U.S. (14 Wall.) 511, 525 (1872) and In re
Schnell, 46 F.2d 203, 209, 8 USPQ 19, 25 (CCPA 1931). In light
of these authorities, it is apparent that it is the appearance of
the design as a whole which must be considered and, therefore,
to the extent that proportions and shape of a design contribute
to the overall visual effect, they must be taken into
consideration. Cf. Lee v. Dayton-Hudson Corp., 838 F.2d 1186,
1188, 5 USPQ2d 1625, 1627 (Fed. Cir. 1988) wherein our reviewing
court (in considering the infringement of a design patent) stated
the district court correctly viewed the
design aspects of the accused devices: the
wooden balls, their polished finish and
appearance, the proportions, the carving on
the handle, and all other ornamental
characteristics, considered to the extent
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