Appeal No. 98-2889
Application 29/022,106
1460, 43 USPQ2d 1887, 1890 (Fed. Cir. 1997). When there are
several ways to achieve the function of an article of
manufacture, the design of the article is more likely to serve
a primarily ornamental purpose. Berry Sterling Corp. v.
Pescor Plastics, Inc., 122 F.3d 1452, 1456, 43 USPQ2d 1953,
1956 (Fed. Cir. 1997); L. A. Gear Inc. v. Thom McAn Shoe Co.,
988 F.2d 1117, 1123, 25 USPQ2d 1913, 1917 (Fed. Cir. 1993).
Here, declarant Giamati, the sole inventor, states that
he “designed the brush assembly housing claimed in the
captioned application to have a ‘heavy duty’ look and feel.”
Giamati also states that “a functionally equivalent brush
assembly having a ‘light duty’ appearance could be designed
having a substantially different appearance than the claimed
design.” Declarant Giamati adds that “a functionally
equivalent brush assembly having a ‘heavy duty’ appearance
could be designed having a substantially different appearance
than the claimed design such as, for example, by configuring
the attachment leg as an aluminum bracket integrally attached
to the brush housing, as well as other configurations . . . .”
We do not share the examiner’s apparent belief that the
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