Appeal No. 97-2461
Application 29/020,294
It is the overall appearance, the visual effect as a whole of the
design, which must be taken into consideration. In re Rosen,
673 F.2d at 390, 213 USPQ at 349.
The appellant's figures 1-3 together show a tubular sleeve
which has the same look all the way around. As is stated in the
specification on page 1, "it should be understood that all other
side views are substantially equal to Fig. 1."
Contrary to the examiner's view, we do not find that Carter
satisfies the basic requirement of a Rosen reference. Being
tapered is not the only feature of the appellant's design.
Continuity, and smoothness as reflected in the appellant's
tubular design are also distinctive and cannot be ignored.
Carter's design, on the other hand, as is shown collectively in
figures 3 and 4 has substantial overlap and a stacked appearance
at the edges of the overlap. Carter's sleeve is wrapped onto2
the user's arm and fastened together where the edges meet. In
our view, Carter is clearly not a Rosen reference which embodies
fundamentally or substantially similar basic design concepts.
In any event, even assuming that Carter constitutes a Rosen
reference, the rejection still cannot be sustained. Whether or
Figure 4 alone does not illustrate the whole design.
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Last modified: November 3, 2007