Appeal No. 97-2893
Application No. 29/038,948
in "the ornamental design . . . substantially as shown and
described" while denying such protection to the appellants.
We respectfully disagree with the appellants on this point.
In our view, the PTO in the present case has advanced convincing
reasoning in support of its position which has not been rebutted
by the appellants. Under these circumstances, the PTO cannot be
said to be acting arbitrarily and capriciously in refusing to
grant the appellants a patent. Further, and as stated above, to
the extent any error has been made in the rejection or issuance
of claims in a particular application, the PTO and its examiners
are not bound to repeat that error in subsequent applications.
Fourth, the appellants contend that we overlooked or
misapprehended the impropriety of an MPEP ruling based on dictum
in a footnote of a Board decision in conflict with authoritative
rulings of binding precedent for more than a century.
This is apparently in regard to our reference on pages 19-
20 of our decision to MPEP § 1504.04, and/or to the examiner's
reliance on In re Sussman, 8 USPQ2d 1443 (Bd. Pat. App. & Int.
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