Ex parte KACHMAR - Page 3




          Appeal No. 97-3204                                                          
          Application 29/024,652                                                      


          ing the issue of the obviousness of a design claim in such a                
          case:                                                                       
               In rejecting a claim to an ornamental design under 35                  
          U.S.C.  103, the examiner must supply a basic design refer-                
          ence that bears a substantially identical visual appearance to              
          the claimed design.  In re Harvey, 12 F.3d 1061, 1063, 29                   
          USPQ2d 1206, 1208 (Fed Cir. 1993).  That is, there must be a                
          reference, a something in existence, the design characteris-                
          tics of which are basically the same as the claimed design;                 
          once a reference meets this test,                                           


          reference features may reasonably be interchanged with or                   
          added from those in other pertinent references.  See In re                  
          Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).  The               
          examiner must then explain or offer evidence showing why the                
          differences between the reference design and the claimed                    
          design would have been considered to be de minimis to the                   
          ordinary designer in the field of the articles involved.  See               
          In re Carter, 673 F.2d 1378, 1380, 213 USPQ 625, 626 (CCPA                  
          1982).  "However, the evaluation of the whole necessarily                   


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