Appeal No. 98-1906
Application D29/045,336
conclusion that the location of Milberg’s joint 15 is merely a
slight difference that does not change the overall appearance
of the design such that the claimed design and the reference
design would be considered by one of ordinary capability who
designs articles of this type as mere manifestations of the
same design is not well taken in the absence of some evidence
to support the examiner’s position. In that no other 3
reference evidence has been cited by the examiner to support
this position, the examiner has failed to provide a sufficient
factual basis to support a conclusion of obviousness. In re
Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967),
cert. denied, 389 U.S. 1057 (1968).
The decision of the examiner is reversed.
3The case law cited by the examiner on page 5 of the
answer for the proposition that minute changes are normally
held to be obvious is noted. In that we do not consider the
location of the junction of the vertical back seam and crotch
of Milberg to be a minute or inconsequential change relative
to appellant’s design, these citations are inapposite.
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