Appeal No. 97-2900
Application No. 29/039,134
establish novelty occurs when the average
observer takes the new design for a
different, and not a modified already-
existing, design.
It therefore follows that, in order to establish lack of novelty
(i.e., anticipation), the ordinary observer must take the general
or ensemble appearance-effect of the design under consideration
to be the same as that of an already-existing design (even though
a degree of difference may actually be present).
Here, we are of the opinion that the ordinary observer would
take the appellant's design to be a different design from that
shown by Grodberg. The different overall impressions created by
the tablet of Grodberg and that of the appellant's pellet would
be readily appreciated by an ordinary observer such as a
purchaser. Specifically, the ordinary observer would readily
discern the difference in appearance of the curved ends of the
two designs. That is, as pointed out by the appellant, the
overall appearance of the present design is not virtually
identical to the Grodberg design due to Grodberg having blunter
semi-spherical ends which are readily discernibly different in
appearance from the more bullet shaped ellipsoid ends of the
present design. This being the case, we will not sustain the
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