Appeal No. 96-0211
Application 07/929,150
characteristics of which are basically the same as the claimed
design". In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA
1982). If this primary reference alone is not sufficient for
rendering obvious the claimed design, then design elements from
secondary references may be considered, provided that the
references are related such that the appearance of ornamental
features of the secondary references would have suggested
applying those features to the primary reference. See In re
Borden, 90 F.3d 1570, 1574-75, 39 USPQ2d 1524, 1526-27 (Fed. Cir.
1996). For a design to be unpatentable as being obvious, the
design in the primary reference, or the design produced by
modifying the primary reference in view of the secondary
references, must have the same overall appearance, or visual
effect as a whole, as the claimed design. See In re Harvey, 12
F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993).
The similarities and differences between Palmaz’s design and
that of appellant are well stated by appellant (brief, pages 6-
8):
Applicant’s stent, like Palmaz, has a number of cells
formed by a wire frame construction. Unlike Palmaz,
however, Applicant’s cells are arranged in a single spiral
configuration, much like a barber pole. The cells of Palmaz
are disposed in multiple rings, with each ring being
vertically offset with respect to the previous row. The
shape of the cells in Applicant’s stent are remarkably
different in appearance compared to the shape of the cells
in Palmaz. Applicant’s cells are curvilinear and
asymmetrical whereas the Palmaz cells are regular, linear
3
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