Appeal No. 98-0068
Application 29/030,090
We are constrained to reverse the rejection on appeal.
Simply stated, this panel of the board shares the argued view of
appellant (brief, pages 6 and 7) that the applied reference is
deficient in that it fails to display the rear view and top views
of the automobile design, thereby preventing us from assessing
the reference automobile design as a whole. Our full analysis
follows.
With respect to the rejection of a design claim as
being anticipated, an ordinary observer test is applicable for
determining the novelty of the design under 35 U.S.C. § 102. See
In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 785 (CCPA
1981). As to the particular test for the novelty of a design,
the court in In re Bartlett, 300 F.2d 942, 943-44, 133 USPQ 204,
205 (CCPA 1961) set forth (in quoting from Shoemaker, Patents for
Designs, page 76):
If the general or ensemble appearance-
effect of a design is different from that of
others in the eyes of ordinary observers,
novelty of design is deemed to be present.
The degree of difference required to
establish novelty occurs when the average
observer takes the new design for a
different, and not a modified already-
existing, design.
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