Appeal No. 97-2867
Application No. 29/012,093
Answer at 3. As to the proportion and arrangements of the
detents, the examiner indicates that no patentable design
significance can be attributed to a change in arrangement that is
not consistently carried through all embodiments. Examiner’s
Answer at 6. The examiner also cites In re Cornwall, 239 F.2d
457, 109 USPQ 57 (CCPA 1956), for the proposition that
patentability of a design cannot be based on an element which is
concealed in normal use. Examiner’s Answer at 5.
Appellant argues that the overall appearance of the claimed
design is significantly altered from Mattchen and patentably
distinct therefrom. Appeal Brief at 5. Appellant states that
the contiguity and general shape of the detents are carried
through all embodiments and are therefore entitled to
consideration. Further, Appellant argues (Reply Brief at 1
and 2) that under In re Webb, 916 F.2d 1553, 16 USPQ2d 1433 (Fed.
Cir. 1990), patentability may be based on the detents because the
appearance is a matter of concern at many points in the life of
the shaft. Appellant argues that the claimed design is
essentially a cylindrical shaft with a scalloped band of recesses
at one end. Appeal Brief at 3. Appellant contrasts this with
Mattchen’s polygonal shank having visually prominent axially
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