Appeal No. 98-0070
Application 29/019,900
We do not sustain this rejection, because we disagree with
the examiner’s account of the design feature on the internal
partition between the compartments. In the appellant’s claimed
design, one segment of a transverse partition has a double-lined
appearance. In our view, this gives the overall design a
distinctively different appearance relative to that of Miscoe.
We reject the examiner’s position that the double-in-part
transverse partition is primarily functional. If structural
integrity were the real issue, there is little reason to
strengthen only one segment of the partition, and a thicker
segment without the double panel/lining look would serve just as
well. While it is true that a patentable design must have an
unobvious appearance distinct from that dictated solely by
functional considerations, Lee v. Dayton-Hudson Corp., 838 F.2d
1186, 1188, 5 USPQ2d 1625, 1627 (Fed. Cir. 1988), we do not
regard the internal partition feature at issue as being dictated
solely by functional considerations. We reject, however, the
appellant’s contention that patentable distinction also stems
from (1) the ratio between the height of the compartments and the
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