Appeal No. 97-2313
Application 29/024,479
applied prior art designs, the respective declarations of Ian
Whately and Stanley Hockerson, and the respective viewpoints
of appellant and the examiner. As a consequence of our
review, we make the determination which follows.
We are constrained to procedurally reverse each of the
examiner’s rejections under 35 U.S.C. § 103 since, as more
fully explained, infra, the design claim is determined to be
indefinite, to the extent that we are unable to ascertain the
metes and bounds of the claimed design. In cases such as the
present one, where claimed subject matter is indefinite, an
evaluation thereof relative to prior art is inappropriate. See
In re Wilson, 424 F.2d 1382, 165 USPQ 494, 496 (CCPA 1970) and
In re Steele, 305 F.2d 859, 134 USPQ 292, 295 (CCPA 1962)
As set forth above, the claimed ornamental design before
us on appeal is for the “SIDE, UPPER AND SOLE PERIPHERY OF A
SPRING SHOE, as shown and described”.
The original specification in this design application
described Figures 1 through 3 as views of a first embodiment
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