Appeal No. 97-2440
Application 29/036,036
Accordingly, we will not sustain the examiner's
rejection of appellant's design claim under 35 U.S.C. 103.
NEW GROUND OF REJECTION UNDER 37 CFR 1.196(b)
In accordance with 37 CFR 1.196(b), we make the
following new ground of rejection.
The design claim is rejected under the judicially
created doctrine of obviousness-type double patenting in view of
the design claim of Design Patent No. D356,213 to Chaves.
While the claimed design of Chaves differs from the
instant design claim in that the former includes the electric
screwdriver as part of the overall design, the instant claimed
design would have been obvious, within the meaning of 35 U.S.C.
103, in view of the pipe fitting cleaner brush portion of Chaves'
design, which portion is identical in design to appellant's
claimed brush design. While the instant claimed design is not
identical, in overall appearance, to the Chaves design, the
designer of ordinary skill would have found it obvious to remove
the cleaner brush from the screwdriver in Chaves resulting in a
cleaner brush design identical to that claimed.
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