Appeal No. 97-2440
Application 29/036,036
In considering the patentability of a design, it is the
overall appearance, the visual effect as a whole of the design,
which is taken into consideration. In re Leslie, 547 F.2d 116,
120, 192 USPQ 427, 429 (CCPA 1977). The proper standard of
review under 35 U.S.C. 103 is whether the claimed design would
have been obvious to a designer of ordinary skill involved with
the type of article with which the claimed design is concerned.
In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 784 (CCPA
1981).
Appellant contends that the design features of a. a
rounded tip at the end of the brush, b. a short length of the
hexagonal base of the brush, c. the inward tapered elongated
thinner polygon length between the top of the base and the start
of the twisted wire portion of the brush; and d. the flat smooth
bottom end portion of the base, all serve to patentably
distinguish the claimed design from what is shown by Lawrence.
The examiner contends [answer, pages 4-5] that the
differences in the appearances of the
top of the twisted wire and the bottom
of the hexagonal base are so minor that
they do not impact on the overall
appearance of the claimed design.
Further, the fact that the hexagonal
shaft of the claimed design is shorter
than that of the applied reference is an
obvious variation which involves
ordinary skill.
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