Appeal No. 97-2464
Application 29/038,531
what are indicated to be the distinguishing features of the
claimed design. See Petersen Manufacturing Co., Inc. v. Central
Purchasing, Inc., 740 F.2d 1541, 1548, 222 USPQ 562, 567 (Fed.
Cir. 1984). Additionally, when considering the patentability of
a design, the mere fact that there are differences between the
design and a prior art design is not alone sufficient to justify
the patentability of the design. In re Lamb, 286 F.2d 610, 611,
128 USPQ 539, 539 (CCPA 1961). It is the distinctiveness in
overall appearance of a design when compared to a prior art
design, rather than minute details or small variations in
configuration, which constitutes the test for design
patentability. In re Lapworth, 451 F.2d 1094, 1096, 172 USPQ
129, 131 (CCPA 1971).
We now consider how these principles and the arguments
made by appellants and the examiner affect our decision based
upon the record before us.
Our first observation is that the Coupon appears to be an
acceptable something in existence, the design characteristics of
which are basically the same as the claimed design. In other
words, it is apparent to us that the Coupon is a Rosen type
reference. Appellants have not specifically challenged the use
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