Appeal No. 97-3184
Application 29/048,245
The test for determining obviousness of a claimed design
under 35 U.S.C. § 103 is whether the design would have been
obvious to a designer of ordinary skill who designs articles of
the type involved. In re Carter, 673 F.2d 1378, 1380, 213 USPQ
625, 626 (CCPA 1982) and In re Nalbandian, 661 F.2d 1214, 1216,
211 USPQ 782, 784 (CCPA 1981). The appellants’ design lies in
the realm of designers of surgical saw blade hubs.
In order to support a holding of obviousness under § 103,
there must be a reference, a something in existence, the design
characteristics of which are basically the same as the claimed
design. Such a reference is necessary whether the holding is
based on the basic reference alone or on the basic reference in
view of modifications suggested by secondary references. In re
Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
Although we agree with the examiner that Goris can be
considered a Rosen reference, we do not believe that a combined
consideration of Goris, Walen, Mongeon and Hall establishes the
obviousness of the appellants’ design. In particular, we observe
that the claimed design has a large V-shaped cut-out wherein the
sloping sides that define the “V” intersect with the curved outer
periphery of the hub in such a manner so as to form a sharp edge.
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