Ex parte DAVIS et al. - Page 7

          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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