Appeal No. 98-3079
Application No. 29/052,635
We begin our analysis by pointing out that the standard
for evaluating the patentability of a design is whether it
would have been obvious to a designer of ordinary skill in the
articles involved. See In re Nalbandian, 661 F.2d 1214, 1216,
211 USPQ 782, 784 (CCPA 1981). In rejecting a claim to an
ornamental design under 35 USC § 103, the examiner must supply
a basic design reference that bears a substantially identical
visual appearance to the claimed design. In re Harvey, 12
F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed Cir. 1993). That
is, there must be a reference, a something in existence, the
design characteristics of which are basically the same as the
claimed design; once a reference meets this test, reference
features may reasonable be interchanged with or added from
those in other pertinent references. In re Rosen, 673 F.2d
388, 391, 213 USPQ 347, 350 (CCPA 1982).
On page 3 of the Brief, the appellant has listed six
differences between the claimed design and that of Zutler, the
primary reference. From our perspective, at the very least,
two of these rise to the level of providing such a difference
between the claimed design and that of Zutler, even as
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