Appeal No. 96-3648
Application No. 07/685,563
35 U.S.C. ' 103 was reversed. The examiner now cites new prior
art, U.S. Patent No. 3,850,434 to Ockenfels against the claim
under 35 U.S.C. ' 102(b).
Reference is made to the briefs and answers for the
respective positions of appellant and the examiner.
OPINION
We reverse.
In order to establish an anticipation, under 35 U.S.C.
' 102, of a claimed design, the examiner must demonstrate that a
prior art reference describes subject matter which is identical
in all material aspects as the claimed design.
Accordingly, we look to the identity of appearances or
sameness between the game board design of Ockenfels and the golf
ball marker design of the instant invention in order to determine
the appropriateness of the examiner’s rejection under 35 U.S.C.
' 102.
While both sides argue the difference or de minimus nature
between the curves of the crescent designs of both Ockenfels and
the instant invention, we need not reach that issue since the two
designs are not identical in all material aspects, in the sense
of 35 U.S.C. ' 102, for other reasons.
The instant claimed invention is a three-dimensional design
for a golf ball marker having a crescent shape, in top view, as
shown in Figure 1, and a relatively thin height, or thickness, in
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