Appeal No. 97-2900
Application No. 29/039,134
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellant's drawings, specification
and claim and to the respective positions articulated by the
appellant and the examiner. As a consequence of our review, we
have determined that the examiner's rejection of the appellant's
design claim under 35 U.S.C. § 102(a), (b) and (e) as being
anticipated by Grodberg cannot be sustained.
We initially note that the "ordinary observer" test (as
distinguished from the "ordinary designer" test used in
determining obviousness under 35 U.S.C. § 103) is applicable in
determining the presence of novelty under § 102. See In re
Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 785 (CCPA 1981).
With respect to the "ordinary observer" test for determining
whether novelty is present under § 102 the court in In re
Barlett, 300 F.2d 942, 943-44, 133 USPQ 204, 205 (CCPA 1961) set
forth (in quoting with approval from Shoemaker, Patents for
Designs, page 76):
If the general or ensemble appearance-
effect of a design is different from that of
others in the eyes of ordinary observers,
novelty of design is deemed to be present.
The degree of difference required to
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