Appeal No. 97-2462
Application 29/031,592
1063-64, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993) and In re Rosen,
673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
From our perspective, appellant's design, considered as
a whole, visually portrays a pepper mill appearance significant
in its showing of a long tapered base above which rises a
cylindrical base top and cap, each of the base top and cap
appearing closely adjacent one another.
On the other hand, the reference design evidences a
pepper mill with an overall cylindrical appearance wherein the
cap rises above the base top, separated therefrom by a visually
perceptible tapered portion of the base top, the tapered portion
being within the external overall cylindrical form of the pepper
mill.
Based upon our visual appreciation of the claimed and
reference designs, as described above, we reach the conclusion
that the pepper mill design portrayed in the David '536 reference
fails to evidence a something in existence, the design charac-
teristics of which are basically the same as in the pepper mill
design on appeal. Stated differently, the reference design
simply does not look like the claimed pepper mill design. Thus,
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