Appeal No. 96-4010
Application 29/021,122
Also noted in L.A. Gear and Berry Sterling Corp. v. Pescor
Plastics Inc., 122 F.3d 1452, 1456, 43 USPQ2d 1953, 1956
(Fed. Cir. 1997), is the proposition that
[w]hen there are several ways to achieve the
function of an article of manufacture, the
design of the article is more likely to serve
a primarily ornamental purpose.
In Berry Sterling, 122 F.3d at 1456, 43 USPQ2d at 1956,
with regard to alternative designs, Judge Rich goes on to
indicate that
[c]onsideration of alternative designs,
if present, is a useful tool that may
allow a court to conclude that a challenged
design is not invalid for functionality. As
such, alternative designs join the list of
other appropriate considerations for
assessing whether the patented design as a
whole --- its overall appearance --- was
dictated by functional considerations. Other
appropriate considerations might include:
whether the protected design represents the
best design; whether alternative designs
would adversely affect the utility of the
specified article; whether there are any
concomitant utility patents; whether the
advertising touts particular features of the
design as having specific utility; and
whether there are any elements in the design
or an overall appearance clearly not dictated
by function.
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