Appeal No. 98-1690
Application No. 07/715,257
OPINION
We affirm.
The controlling case for the issue presented under § 171
is Ex parte Strijland, 26 USPQ2d 1259 (Bd. Pat. App. & Int.
1992) wherein it was held that icons, of the type of interest
herein, per se, are not protectable by design patent because
37 CFR 1.152 and 1.153(a), consistent with 35 U.S.C. 171,
require that the design must be applied to an article of
manufacture since the “factor which distinguishes statutory
design subject matter from mere picture or surface
ornamentation per se (i.e., abstract designs) is the
embodiment of the design in an article of manufacture.”
Strijland, 26 USPQ2d at 1262.
The majority in Strijland went further and, in dicta,
stated, 26 USPQ2d at 1263,
Had appellants’ specification, as originally filed,
included the language added by the above referred to
amendment, and included drawings of the type shown in the
addendum to this opinion , we would have held that the claimed2
design is statutory subject matter, and the design would have
been patentable in the absence of other grounds of rejection.
2Those drawings depict the icon on a display screen of a
computer, the computer processor and the video monitor having
the display screen being all in dotted lines.
3
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