Appeal No. 95-2937
Application 29/057,491
38 of Dusseault’s bottle does not alter the overall visual appearance thereof “since a
closed end on a container is functional in nature” (final rejection, page 2). In addition, the
examiner’s position that it would have been obvious to provide an opening in the bottom of
Dusseault’s bottle is not well taken since to do so would render its incapable of functioning
as a bottle.
We also cannot accept the examiner’s implied position that the lower section of the
vertical neck portion of Dusseault’s bottle is smooth and delicate in appearance like that of
the claimed design. This is clearly speculative, since the portion of Dusseault’s bottle in
question is obscured by the cap 35. If anything, it seems to us that the neck of Dusseault’s
bottle would incorporate some sort of closure structure, such as a threaded portion or a
peripheral lip, to cooperate with the cap to provide for a secure closure of the bottle. In any
event, Dusseault’s disclosure is ambiguous as to the appearance of this portion of the
bottle, and it is improper to dismiss the impact this portion has on the overall appearance
of the claimed ornamental design, as the examiner has done here.
The examiner also has not adequately treated other features of appellant’s
ornamental design (e.g., the flanges at the top and bottom openings of the claimed design,
and the transition between the globe-like portion and the lower vertical neck) in arriving at
her bottom line conclusion that the claimed design and Dusseault’s bottle have the same
basic overall visual appearance and that any difference are de minimis. In this regard, we
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Last modified: November 3, 2007