Appeal No. 97-2461
Application 29/020,294
Action (Paper No. 8), the examiner indicated that the drawing
correction had been approved. Also in the advisory Office
Action, the examiner indicated that a previous rejection made
under 35 U.S.C. § 112, has been overcome. Thus, the only
rejection on appeal is that for obviousness under 35 U.S.C.
§ 103. The examiner has relied on:
Carter U.S. Patent No. 5,173,967 Dec. 29, 1992
Opinion
We do not sustain the rejection of the sole design claim
under 35 U.S.C. § 103 as being unpatentable over the design of
Carter's Figure 4.
One of ordinary skill in the art to which the subject matter
pertains in design cases is a designer of ordinary capability who
designs articles of the type presented in the application. In re
Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 784 (CCPA 1981).
Moreover, for determining the obviousness of designs, the Court
of Customs and Patent Appeals has stated in In re Rosen, 673 F.2d
388, 391, 213 USPQ 347, 350 (CCPA 1982):
Thus there must be a 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. Such a reference is
necessary whether the holding is based on the basic
reference alone or on the basic reference in view of
modifications suggested by secondary references.
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