Appeal No. 95-2937
Application 29/057,491
shape as the claimed design, a convex upper portion which curves into a
lower vertical neck portion.
[4]
Thus it would have been obvious to one of ordinary skill in the art at
the time the article was made to take a container and open the closed
functional end so something, such as a flower stem may pass through. As to
whether the cited reference is analogous, it is pointed out that applicants
[sic, applicant’s] claimed design is a type of container since it contains a
flower stem within a defined space.
Therefore, it is believed that Dusseault discloses the [same] general
overall visual appearance as the claimed design, and . . . any difference is of
a functional nature which does not contribute to the visual appearance.
It is well settled that it is unobviousness in the overall appearance of
the claimed design, when compared with the prior art, rather than minute
details or small variations in design as appears to be the case here, that
constitute the test of design patentability. See In re Frick, [275 F.2d 741],
125 USPQ 191 (CCPA 1960) and In re Lapworth, [451 F.2d 1094,
1096],172 USPQ 129 [131], (CCPA 1971).
In responding to appellant’s arguments in the final rejection, the examiner makes
the following additional points:
! any differences that may exist between Dusseault and the claimed
design in the transition area from the bulb portion to the neck “is not
seen to affect the overall visual appearance” (final rejection, page 3);
! appellant’s entire claimed design “is extremely similar to the
container shown in Dusseault . . . the closed end of Dusseault does
We presume the examiner means here “the designer of ordinary capability who designs articles4
of the type presented in the application.” In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ
782, 784 (CCPA 1981).
3
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