Appeal No. 98-3079
Application No. 29/052,635
modified by the two secondary references, as to cause us not
to sustain the examiner’s rejection. These are the very large
size of the opening in the top of the container as compared to
the planform of its top, as is best shown in Figure 58, and
the presence of a rim about this opening, as is best
illustrated in Figures 60-63.
The opening in the top is very prominent when the claimed
container is viewed from the top, in that its size is almost
equal to the width of the top and encompasses a substantial
portion of its length. We therefore cannot agree with the
examiner that this feature is “minor when considering the
overall appearance [of the claimed design]” (Answer, page 3).
Such a size relationship between opening and top is not
present in Zutler (see Figure 4) or, to an even greater
extent, not present in Loofbourrow (see Figure 1), and there
is no circular opening at all in the top of the container
disclosed in McLaughlin. A rim about the opening is not shown
in any of the references.
Therefore, even considering, arguendo, Zutler to be a
Rosen reference, we will not sustain this rejection on the
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