Appeal No. 99-0065 Page 3
Application No. 29/051,335
It is the examiner’s opinion that the appearance of the
design is the result of functional concerns rather than
ornamentality, and therefore it is not in accordance with the
requirements of 35 U.S.C. § 171. As support for this position,
the examiner cites the appellant’s utility patent (Castiglione)
“which describes the functional aspects of a nose clip, of
which the claimed design is one embodiment” (Answer, page 3),
explaining that “to be patentable, a design must be created for
the purpose of ornamenting an article of manufacture” (Answer,
page 3). Because of the explanations provided in Castiglione
regarding the reasons for the shape of the nose clip, the
examiner opines that the design “was not created for the
purpose of ornamenting and not motivated by thought of
ornament,” and concludes that a prima facie case is established
that the claimed design does not conform to Section 171
(Answer, page 5). This, the examiner goes on to state, has not
been rebutted by evidence from the appellant which might
establish “that the intent behind the creation of the nose clip
was ornamental” (Answer, page 5).
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