Appeal No. 98-0070
Application 29/019,900
Opinion
We do not sustain the rejection of the design claim over
Allen and Unilever.
We also do not sustain the rejection of the design claim
over Miscoe.
The rejection based on Allen and Unilever
In an obviousness rejection of a design claim, there must be
a reference which discloses essentially the same basic design as
that claimed in order to support a holding of obviousness. In re
Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982). In our
view, the examiner is incorrect in regarding Allen as a "Rosen"
reference. As is pointed out by the appellant, the claimed
design is characterized by four substantially rectangular
compartments wherein the longer dimension of the compartments is
aligned in parallel to the longer dimension of the rectangular
peripheral wall. Allen's design shows alignment in the other
direction, and appears substantially different from the
appellant’s claimed design. The rejection based on Allen as the
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