Appeal No. 97-2581                                                                                                                                     
                    Application 29/031,665                                                                                                                                 

                    Lampe                                             Des. 281,673                            Dec. 10, 1985                                                
                    Rymoen                                                      4,972,955                     Nov. 27, 1990                                                
                    Ferrero                                           WO 93/00267                                       Jan.    7, 1993                                    
                              The claim stands rejected under 35 U.S.C.  103 as being unpatentable over Ferrero in                                                        
                    view of Lampe and Rymoen.   According to the examiner:2                                                                                                                

                                        It would have been obvious to a person of ordinary skill in the art at the                                                         
                              time the invention was made to have modified the Ferrero lid by providing it with a                                                          
                              plain inside configuration in lieu of it’s annular ribs similar to [sic] as suggested by                                                     
                              Lampe.  Furthermore, to eliminate the surrounding circular ring, element 7, of the                                                           
                              Ferrero lid so as to have a plain configuration similar to [sic] as taught by Rymoen                                                         
                              would result in an article quite similar in general overall appearance of [sic, to] the                                                      
                              design claimed by appellant. [Answer, pages 3 and 4.]                                                                                        
                              In support of this position the answer states:                                                                                               
                                        Appellant has also argued that the opening of the claimed design has an                                                            
                              inverted dome and is quite visible.  The basic reference to Ferrero is substantially                                                         
                              similar in appearance to that of appellant’s design.  To modify the minor features                                                           
                              of the Ferrero lid would have been obvious to a designer as suggested by the                                                                 
                              secondary Lampe and Rymoen references.  The construction of the depression of                                                                

                              the lid, as argued by appellant is bearly [sic, barely] discernable and have a [sic,                                                         
                              has] little or no effect on the overall appearance of the design.  The difference is                                                         
                              insignificant and does not influence the overall appearance of the lid to the extent                                                         

                              2Neither the final rejection nor the answer set forth a clear statement of the rejection                                                     
                    together with the appropriate statutory basis.  However, considering paragraphs (6), (7) and (11)                                                      
                    of the answer,  as a whole, it is readily apparent that this is the intended rejection.  The appellant                                                 
                    is not prejudiced by this interpretation inasmuch as under “Issues” on page 2 of the brief the issue                                                   
                    is correctly articulated as “whether the claimed design is unpatentable over . . . Ferrero . . . in                                                    
                    view of . . . (Lampe) and . . . (Rymoen).”                                                                                                             

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