Appeal No. 97-4065
Application 29/036,355
reference, a something in existence, the design characteristics of which are basically the same as the
claimed design in order to support a holding of obviousness." In re Rosen, 673 F.2d 388, 391, 213
USPQ 347, 350 (CCPA 1982).
We do not find that either Mereness or Merritt teaches the Rosen required something in
existence, the design characteristics of which are basically the same as the claimed design. Appellant's
claimed design is a polygon shaped billiard cue having an overall rounded appearance. Appellant's
design further shows a triangular shaped billiard cue having rounded edges with the overall elongated,
slender shaft having an angular three sided appearance. Merritt teaches a bat with one end portion
having round or circular structure with the other end portion having a triangular end.
The proper test as stated in Rosen is whether there is a reference design, the design
characteristics of which are basically the same as the claimed design. In re Rosen, supra. As shown
above, neither the Mereness rounded billiard cue nor the Merritt bat having one end rounded and the
other end triangular have the same visual effect as does Appellant's triangular shaped billiard cue having
rounded edges with the overall elongated, slender shaft having an angular three sided appearance.
Therefore, neither reference is a reference which shows the same basic design characteristics.
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