Appeal No. 97-2461
Application 29/020,294
not the primary reference relied on for the rejection satisfies
the requirements of a Rosen reference, the differences between
the claimed design and that of the prior art reference still must
be accounted for in a reasonable and meaningful manner.
Here, they have not.
We disagree with the examiner's apparent view that the
difference between the appellant's design and that of Carter
reflects mere minute details or small variations which can be
dismissed or ignored. Rather, the difference must be accounted
for from the perspective of an ordinary designer in this art. It
is of no help to the examiner that Carter's specification states:
"the amount of closure along the lateral edges is determined by
the severity of the element that you are trying to protect the
leg or arm from" (column 1, lines 56-59). Carter uses fasteners
to achieve full closure. In column 4, lines 48-51, Carter
states: "any amount of hook and loop fasteners can be used along
the lateral edge to produce the necessary amount of protection
for the user." Thus, even when "fully closed," Carter's sleeve
still exhibits the overlap and lack of continuity that is far
different from the look of the appellant's continuous tubular
design. Note that Carter's method of applying fasteners,
preferably hook and loop, to the lateral edges 48 is shown in
-4-
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Last modified: November 3, 2007