Appeal No. 96-4010
Application 29/021,122
With the above as guidance, we have reviewed the
positions of the examiner and appellant, and reached the
conclusion that the overall appearance of the design for a CORN
SAVER SHIELD before us on appeal is not dictated by function
alone. As an initial observation, we are of the opinion that
the mere presence in this application of two alternative designs,
which are clearly visually different from one another, is
evidence that the claimed design considered as a whole is not
dictated by function alone or the result of functional
considerations only.
Further, contrary to the views of the examiner, we find
that the other prior art of record in this application (e.g.,
U.S. Patent numbers 2,366,408 (Jenson), 3,241,299 (Sutton),
3,520,121 (Ashton et al.) and 4,630,430 (Weeks)), demonstrates
not only the existence of alternative designs, but also evidences
that alternative designs would not adversely affect the utility
of the specified article, and provides evidence that appellant's
designs are not necessarily "the best design." As to the
declarations submitted by appellant in this application (Paper
Nos. 6 and 9) and the initial submissions (e.g., on December 9,
8
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