Appeal No. 97-2440
Application 29/036,036
that the wire stem (12) is completely
twisted.
It would have been obvious...to
modify Lawrence by untwisting the stem
(12) begining [sic, beginning] below the
bristles to create a contrasting
appearance in the stem. This
modification would meet the overall
appearance of the claimed design.
A fundamental element necessary to support the
rejection of a claimed design under 35 U.S.C. 103 is that "there
must be a reference, a something in existence, the design
characteristics of which are basically the same as the claimed
design..." In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350
(CCPA 1982).
Clearly, Lawrence is a Rosen-type reference with regard
to the instant claimed subject matter. They both relate to pipe
fitting cleaning brushes having circular cleaning brushes on one
end with a twisted wire stem leading therefrom and a hexagonal
shaft on the other end for insertion into an electrical power
tool . Thus, the issue before us is whether it would have been2
obvious, within the meaning of 35 U.S.C. 103, to modify the
design of the Lawrence pipe fitting cleaning brush in such a way
as to arrive at the instant claimed design.
This functional use of the hexagonal shaft is of no moment in2
consideration of the ornamental design before us.
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