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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