Appeal No. 97-3204
Application 29/024,652
(4) The relatively thick cross-sectional shape of the
claimed design as opposed to the substan-
tially flat, trapezoidal shape of the
reference.
Even assuming, arguendo, Love to be a Rosen reference, we
find ourselves in agreement with the appellant that differ-
ences exist between the claimed design and that of Love which
are of such magnitude as to be beyond de minimis, causing the
visual appearance of the claimed device to be patentably
distinguished from that of the reference. Of particular note
in this regard is the presence of peripheral bindings (10)
around the edges of the Love seat pad, which not only cause a
pattern to be visible where the claimed design has none (top
views), but presents a folded shoulder (10) and a trapezoidal
cross-section (Figure 5) where that of the claimed design is
shoulderless and rectangular. The rounded corners of Love as
compared to the rectangular one of the claimed design also
figure in our conclusion that the overall visual appearance of
the claimed design differs from that of Love
5
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