Appeal No. 97-0088
Application No. 29/015,807
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's drawings, specification
and claim and to the respective positions articulated by the
appellant and the examiner. As a consequence of our review, we
have determined that the examiner's rejection of the appellant's
design claim under 35 U.S.C. § 103 as being unpatentable over
Hyde in view of Gallagher cannot be sustained.
At the outset, we keep in mind that, in a rejection of a
design claim under 35 U.S.C. § 103, there is a requirement that
there must be a single basic reference, a something in existence,
the design characteristics of which are basically the same as the
claimed design in order to support a holding of obviousness. See
In re Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir.
1993) and In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA
1982).
The examiner relies upon the appearance of the wall scraper
of Hyde as the basic design reference, i.e., as a "Rosen"
reference (answer, pp. 2 & 3). The appellant concedes (brief, p.
3) that the wall scraper of Hyde closely simulates the shape of
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