Appeal No. 98-1906
Application D29/045,336
8. The overall appearance would have been obvious
to one of ordinary skill in the art at the time the
invention was made in view of Milberg. That is, the
claimed design fails to present a distinctive
appearance over the reference to warrant
patentability. The slight differences cited above
are considered minute. They do not change the
overall appearance of the design and thus do not
render the claim patentable thereover.
9. It is Examiner’s position that the claimed
design and the referenced article would be
considered by one of ordinary capability who designs
articles of this type to be mere manifestations of
the same design, rather than characteristically
different designs.
Appellant argues in the main and reply briefs that the
difference in appearance of the claimed design as compared to
Milberg brought about by the change in location of the
juncture of the crotch to the vertical back seam is not
minute, but instead results in a new and patentably distinct
ornamental design. Appellant also relies on the declaration
of Maria Hudson (attachment to Paper No. 5) in support of the
patentability of the present invention.
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