Appeal No. 98-1692
Application No. 07/715,145
The claim stands further rejected under 35 U.S.C. § 171
as being directed to nonstatutory subject matter regarding
design claims.
Reference is made to the brief and answer for the
respective positions of appellants and the examiner.
OPINION
We affirm.
The controlling case for the issue presented under § 171
is Ex parte Strijland, 26 USPQ2d 1259 (BPAI 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 1259, 1262.
The majority in Strijland went further and, in dicta,
stated, at 26 USPQ2d 1263,
3
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