Appeal No. 98-1694
Application 07/715,261
OPINION
We affirm.
The controlling case for the issue presented under § 171
is Ex parte Strijland, 26 USPQ2d 1259, 1262 (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, supra.
The majority in Strijland went further and, in dicta,
stated, at 26 USPQ2d 1263,
Had appellant’s 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 would2
Those drawings depict the icon on a display screen of a computer, the2
computer processor and the video monitor having the display screen being all
in dotted lines.
3
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007