Appeal No. 97-2313
Application 29/024,479
patent protection is being sought. It would be inappropriate
on our part to speculate as to what is intended to be covered
by appellant’s
design claim. Simply as an example of the indefiniteness issue
surrounding appellant’s design claim, we note that there is no
drawing figure in this design application which is a top view.
Thus, the periphery (external boundary) of the sole, for
example, is indeterminate based upon the showing in Figures 1
through 3 and Figures 4 through 6. It must, of course, be kept
in mind that the addition of views depicting appearances not
originally disclosed, as well as the removal of design
appearances originally disclosed, each raise a description
issue (new matter). Since the design being claimed is
indeterminate, what would constitute an appropriate Rosen
reference under 35 U.S.C.
§ 103 would likewise be indeterminate. See In re Rosen, 673
F.2d 388, 213 USPQ 347 (CCPA 1982). It is for the above9
9Appellant submits (reply brief, page 4, footnote 2) that the Gelli
document would not be a proper basic reference. Declarants Whatley and
Hockerson (declarations in APPENDICES A and B of main brief) each addressed
the Weber patent as a basic reference, indicating in effect that Weber does
9
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