Appeal No. 97-4065
Application 29/036,355
The subject matter of the invention is a design for a triangular shaped pool cue as shown in
Figures 1 through 15 in the application.
The Examiner relies on the following references:
Mereness 672,646 Apr. 23, 1901
Merritt 4,600,193 July 15, 1986
The claim stands rejected under 35 U.S.C. § 102 as being anticipated by Mereness. In
addition, the claim stands rejected under 35 U.S.C. § 103 as being unpatentable over Mereness in
view of Merritt.
Rather than reiterate the arguments of Appellant and the Examiner, reference is made to the
brief and answer for the respective details thereof.
OPINION
We will not sustain the rejection of the claim under either 35 U.S.C. § 102 or 103.
In determining the patentability of a design, it is the overall appearance, the visual effect as a
whole of the design, which must be taken in consideration. In re Leslie, 547 F.2d 116, 120, 192
USPQ 427, 429 (CCPA 1977). In determining whether a design patent application is properly
rejected under 35 U.S.C. § 102, the prior art reference must show the same subject matter as that of
Appellant's claim and must be identical in all material respects.
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