Appeal No. 97-2440
Application 29/036,036
While we might agree with the examiner's observations
with regard to the top of the twisted wire, the bottom of the
base and the length of the hexagonal shaft, taken individually,
when these individual features are viewed as a whole, there
appears to be a visual impact which results in an ornamental
design quite different from that of Lawrence. But, in any event,
once the portion between the twisted wire portion and the top of
the hexagonal base is taken into account, it is our view that the
overall design of the instant claim is of such substantial
difference with regard to that shown by Lawrence as to be
patentably distinct therefrom. Whereas Lawrence's brush
constitutes a continuous twisted wire from the top of the
hexagonal base to the brush section, the instant claimed design
comprises a substantial length of an untwisted portion (called a
"polygon" section by appellant) between the top of the hexagonal
base and the twisted portion leading to the brush section.
When considering the cumulative effect of these
differences in design, it is our view that the instant claimed
design patentably distinguishes over the Lawrence design and the
examiner's contentions that it "would have been obvious...to
modify Lawrence by untwisting the stem (12) begining [sic,
beginning] below the bristles to create a contrasting appearance
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