Appeal No. 97-3824
Application 29/042,728
back portion of the belt, with the legs of the V extending
from opposite sides of a small centrally disposed rectangular
element having a vertical dimension slightly greater than the
width of the strap.
The examiner explains the case for obviousness as
follows:
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to made to modify Yewer, Jr. by providing it with
the overlapped contoured belt . . . as taught by
Schiek, Sr., and the rear tab as taught by Glover et
al[.] to obtain essentially the herein disclosed and
claimed design. [Answer at 4.]
Appellant's position is that
modification of Yewer with selected, dissected
elements of Schiek and Glover et al. would destroy
the belt disclosed by Yewer in that a majority of
the features of Yewer must be modified. These
modifications clearly destroy the fundamental
characteristics of the design of the Yewer belt.
[Opening Brief at 8.]
We agree with appellant and therefore hold that Yewer is not a
proper primary reference, which is reason enough to reverse
the rejection. Rosen, 673 F.2d at 391, 213 USPQ at 350.
Nevertheless, we have also considered whether the collective
teachings of the references yield the claimed design. As
evidence of the obviousness of using appellant's V-shaped
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