Ex parte FIGUEROA - Page 4




          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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