Appeal No. 98-2889
Application 29/022,106
existence of appellant’s corresponding utility patent is
controlling on the functionality issue raised here. Rather,
the existence of the utility patent is merely one factor to be
considered with respect to the issue at hand. Berry Sterling
Corp. v. Pescor Plastics, Inc., 122 F.3d at 1456, 43 USPQ2d at
1956. In the present instance, the inventor declares that the
article was designed to have a heavy duty appearance. Also
noteworthy is appellant’s statement in the declaration that a
functionally equivalent article having an aluminum attachment
leg could be designed. U.S. Patent No. 4,136,295, of record,
apparently shows at element 82 one such attachment leg used
for mounting a modular brush housing unit. If used in
conjunction with appellant’s housing unit, a different design
would result. In addition, we note the BFGoodrich Report No.
68-04-714K publication made of record by appellant. On page
24 of that publication, Figure 29 shows what appears to be a
block-like brush housing unit 5 having a design that is
markedly different from the claimed design. Weighing all the
above factors, we conclude that the claimed design is not
merely functional. We therefore will not sustain the
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