Appeal No. 95-2937
Application 29/057,491
not alter the overall visual appearance since a closed end on a
container is functional in nature” (final rejection, page 4);
! “[b]oth Dusseault and the claimed design have basically the same
length neck” (final rejection, page 4);
! “when one looks at the two designs[,] they look alike, it is when one
has to search for the difference that establishes that the claimed
design in not patentably distinct from Dusseault" (final rejection, page
5).
Opinion
While we appreciate that certain features of appellant’s design, generally speaking,
have a counterpart in Dusseault’s squat bottle, namely, the globe-like body portion and the
short vertical neck, we must agree with appellant that the claimed ornamental design as a
whole would not have been obvious to the designer of ordinary capability who designs
articles of the type presented in the application.
First, it appears that the examiner has improperly focused solely upon the
appearance of the claimed ornamental design as seen in elevation in formulating the
rejection. However, we believe the bottom 38 of Dusseault’s bottle, which we presume to
merely be a flat closed bottom in the absence of any indication to the contrary, would
present a markedly different visual appearance as compared to the open end of the
claimed ornamental design when viewed from below, i.e., as shown in appellant’s Figure
1. In this regard, we simply do not understand the examiner’s position that the closed end
4
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