Appeal No. 95-2600
Application 07/990,458
Appellant argues that none of the references discloses a
pair of elastic band portions and a pair of non-elastic band
portions as recited in claim 11 (Brief, pages 21-22). The
examiner states (Examiner's Answer, page 11):
Using various types and configurations of such well known
headbands constitutes an obvious choice in engineering
design and not inventive skill. Furthermore, Heilig
discloses a headband which uses rotatable elastic bands (16)
and non-elastic bands (17) (col.2, ln.18-20).
We note that the band 15 of cloth material in Heilig is more
analogous to the claimed non-elastic band portions than bands 17
because it attaches to the elastic bands at respective sides of
the display apparatus, whereas bands 17 rotatably attach the
elastic band portions to the sides of the casing 10. We agree
with the examiner that many variations of head bands could be
considered matters of design choice. "Design choice" has been
used where the differences appear to be a matter of choice by the
designer in doing something one way rather than another and solve
no stated problem and do not result in a different function or
give unexpected results. See In re Chu, 66 F.3d 292, 298-99,
36 USPQ2d 1089, 1094-95 (Fed. Cir. 1995). However, since the
specific arrangement of non-elastic band portions rotatably
attached to each other at one end requires some sort of rigid
band and allows the band to be collapsed as shown in figure 12,
we do not think the arrangement can be dismissed as providing no
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