Appeal No. 96-0211
Application 07/929,150
THE REFERENCES
Palmaz 4,733,665 Mar. 29, 1988
Wiktor 5,133,732 Jul. 28, 1992
THE REJECTIONS
The claim stands rejected under 35 U.S.C. § 103 as being
unpatentable over Palmaz, and also over Palmaz (Figs. 1A and 1B)
in view of Wiktor.2
OPINION
We have carefully considered all of the arguments advanced
by appellant and the examiner and agree with appellant that the
aforementioned rejection is not well founded. Accordingly, we do
not sustain this rejection.
The ultimate inquiry when obviousness of a design is
considered under 35 U.S.C. § 103 is whether the design would have
been obvious to a designer of ordinary skill who designs articles
of the type involved. See Durling v. Spectrum Furniture Co ., 101
F.3d 100, 103, 40 USPQ2d 1788, 1790 (Fed. Cir. 1996). For a
design to be unpatentable because of obviousness, there must be a
reference which shows "something in existence, the design
2 Although the examiner’s answer does not so state, it
appears from the discussion in the answer that in the rejection
over Palmaz alone, the examiner also relies upon Figs. 1A and 1B
of that reference.
2
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