Appeal No. 98-1693
Application D-07/343,182
We affirm.
The controlling case for the issue presented under § 171
is Ex parte Strijland, 26 USPQ2d 1259 (Bd. Pat. App. &
Interferences 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,
Had appellants’ specification, as originally
filed, included the language added by the above
referred to amendments, and included drawings of the
type shown in the addendum to this opinion we would 2
have held that the claimed design is statutory
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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