Appeal No. 1998-1029
Application 08/361,590
drawing figures depict a mask made of thin sheet material for
covering the face of the wearer. The mask includes what
appears to be a mouth opening and areas depicting eyes that
may be openings covered with transparent or translucent
material.
The examiner acknowledges that Owens is silent as to the
material of the mask. We further note that Owens does not
disclose or suggest deforming the mouth of the mask at least
50% greater than its undeformed width, as required by claim
17, and further that Owens does not disclose or suggest
providing a toy body such that the center of gravity of the
toy is not within the toy head, as required by claim 22.
Notwithstanding these deficiencies, the examiner has taken the
position that it would have been obvious to make the mask of
Owens of an elastic material “since it is commonly done”
(final rejection, page 2), and has implicitly concluded that
this would result in the subject matter of the appealed
claims. We disagree.
Simply put, the Owens design patent alone does not
provide a sufficient evidentiary basis to support the
examiner’s conclusions of obviousness. In re Warner, supra.
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