Appeal No. 96-2905
Application No. 29/008,076
design application must be evaluated on the record developed
in the Patent and Trademark Office (PTO). See In re Gyurik,
596 F.2d 1012, 1018 n.15, 201 USPQ 552, 558 n.15 (CCPA 1979)
and In re Phillips, 315 F.2d 943, 945, 137 USPQ 369, 370 (CCPA
1963). To the extent any error has been made in the rejection
or issuance of claims in a particular application, the PTO and
its examiners are not bound to repeat that error in subsequent
applications. Accord, In re Donaldson Co., 16 F.3d 1189,
1194, 29 USPQ2d 1845, 1849 (Fed. Cir. 1994) ("The fact that
the PTO may have failed to adhere to a statutory mandate over
an extended period of time does not justify its continuing to
do so."); In re Cooper, 254 F.2d 611, 617, 117 USPQ 396, 401
(CCPA), cert. denied, 358 U.S. 840, 119 USPQ 501 (1958)
(decision in a trademark application in accordance with law is
not governed by possibly erroneous past decisions of the
Patent Office); In re Zahn, 617 F.2d 261, 267, 204 USPQ 988,
995 (CCPA 1980) ("[W]e are not saying the issuance of one
patent is a precedent of much moment."); Ex parte Tayama, 24
USPQ2d 1614, 1618 (Bd. Pat. App. & Int. 1992) (prior issuance
of patents for designs referred to as icons has no significant
precedential value in evaluating compliance with 35 U.S.C. §
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