Appeal No. 98-0919
Application 29/042,395
The references applied in the final rejection are:
Cummings 4,235,409 Nov. 25, 1980
McLean 4,658,534 Apr. 21, 1987
The claim stands finally rejected under 35 USC § 103 as
unpatentable over Cummings in view of McLean.
The examiner states the basis of the rejection as
(answer, page 4):
The overall appearance of [the] claimed design
is substantially disclosed by Cummings (Items 18,
20, 22), except for a bend at a 45 degree angle, a
head on the stake, tapered lower end, and the fact
that it is attached to a surface.
McLean discloses a free-standing rod holder with
a straight stake with a head on top and tapered
lower end--like [the] claimed design--to be
notoriously old in the prior art.
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to modify Cummings by removing it from the surface,
as taught by McLean, straightening the bend in the
stake, adding a head to the top and tapering the
lower end, as disclosed and taught by McLean, in
order to obtain substantially the herein disclosed
and claimed design.
In determining whether a claimed design would have been
obvious, Durling v. Spectrum Furniture Co., 101 F.3d 100, 103,
40 USPQ2d, 1788, 1790 (Fed. Cir. 1996), states:
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