Appeal No. 98-2889
Application 29/022,106
. . . as claimed in the captioned application, was a factor in
at least some customer’s decisions to replace modular brush
assemblies having [dissimilar] appearances . . . .”
When an article is hidden from view in the final stage of
its commercial life it is reasonable to presume, as a general
rule, the absence of ornamentality. In re Webb, 916 F.2d
1553, 1557, 16 USPQ2d 1433, 1435 (Fed. Cir. 1990). Inquiry
must extend, however, to whether at some point in the life of
the article an occasion arises when the appearance of the
article becomes a “matter of concern.” Id. Our reading of
appellant’s declaration evidence, particularly those portions
noted above, leaves us with little doubt that the appearance
of the article in question was indeed a “matter of concern”
prior to its final use in that, on those occasions when the
article was viewed by prospective buyers its appearance was
purposefully intended to favorably influence prospective
buyers to purchase same. The examiner is not understood to
view the declarations otherwise. As such, we consider 3
3Indeed, the examiner states that “[he] will concede
that Mr. Garcia’s affidavit [sic, declaration] establishes
that during the period of its visibility, the appearance of
the claimed design was a 'matter of concern'” (answer, page
-4-
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