Appeal No. 98-0068
Application 29/030,090
To apply the aforementioned test, we must be able to
consider each of the claimed and reference designs in their
entirety. As pointed out by appellants (brief, pages 6 and 7),
rear and top views are part of the presently claimed design, but
the rear view and the top view of the reference design are not
shown. Since portions of the overall automobile design of the
reference are not shown, we cannot fairly assess the reference
design relative to the claimed design. Solely for this reason,
we are constrained to reverse the rejection of appellant’s design
claim under 35 U.S.C. 102(a). 3
3The applied reference portrays a BMW automobile and the
appeal brief (page 1) informs us that the real party in interest
in this design application is “Bayerische Motoren Werke AG”
(BMW). The automobile shown in the reference has a license plate
mounted thereon. This circumstance leads us to question whether
the overall appearance of this vehicle may have been available to
the public prior to appellant’s invention. If publicly
available, it would appear reasonable to say that other
automobile periodicals may have published a more complete design
showing of the automobile. Additionally, we note that
appellant has argued differences between the automobile design
partially shown in the applied reference and the claimed design
(brief, pages 4 through 6). However, we are not certain from the
record if the reference automobile (new 5-series BMW due in 1995)
is a version of the same model year automobile for which design
patent protection is now being sought.
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