Appeal No. 98-2889
Application 29/022,106
appellant’s evidence to be sufficient to overcome the
presumption of lack of ornamentality raised by the
circumstance that the article is hidden from view in its final
stage of use. We therefore will not sustain the examiner’s
“hidden in use” rejection.
The Primarily Functional Rejection
Looking at the examiner’s second rejection under 35
U.S.C.
§ 171, the examiner states that “[t]he housing claimed in the
instant application is also the subject of U.S. Patent No.
5,479,060. The few features of the housing that are discussed
in this patent are functional in nature” (answer, page 5).
Implicit in the above is the examiner’s position that the
noted circumstances are sufficient to establish that the
claimed design is primarily functional rather than ornamental
in use.
To qualify for design patent protection, a design must
have an ornamental appearance that is not dictated by function
alone. Hupp v. Siroflex of America, Inc., 122 F.3d 1456,
6).
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