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).”
2
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