Appeal No. 99-0065 Page 4
Application No. 29/051,335
Essentially for the reasons set forth by the appellant in
the Brief and the Reply Brief, we do not agree with the
examiner’s conclusion.
The guidance provided by our reviewing court on this issue
is whether other designs could be used, that is, whether there
are other ways to achieve the function of the article. That
the design of an article is related to its functional use may
not defeat patentability; to qualify for design patent
protection a design must have an ornamental appearance that is
not dictated by function alone. See, for example, Hupp v.
Siroflex of America, Inc., 122 F.3d 1456, 1459, 43 USPQ2d 1887,
1890 (Fed. Cir. 1997) and Barry Sterling Corp. v. Pescor
Plastics Inc., 122 F.3d 1452, 1455, 43 USPQ2d 1953, 1956 (Fed.
Cir. 1997). The appellant has pointed out that Castigloine
discloses in Figures 3a-3c other designs of nose clips as
alternatives to the one of Figure 3, which accomplish the same
objectives. We also note that the Castiglione specification
sets out ranges of angles, lengths and thicknesses which
deviate from those shown in the claimed design, the application
of which would give rise to designs other than the claimed
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007