Appeal No. 99-0837
Application No. 29/074,268
Appellant’s Position
In support of patentability, appellant does not contend
that the statutory basis (namely § 171) for the appealed
rejection is improper. Nor does appellant challenge the
examiner’s rationale underlying the § 171 rejection, namely
that a rejection may be based on § 171 if the claimed design
lacks originality and thus does not meet all of the
requirements for patentability in § 171.
Instead, appellant points out on page 4 of his brief that
“there are at least six significant differences between the
claimed design and a natural coconut” as shown in the
photographs appended to his Request for Reconsideration filed
February 27, 1998. Given these differences, appellant
maintains that his claimed design, when viewed as a whole, is
sufficiently different from the naturally occurring form of a
coconut to satisfy the “originality” requirement in § 171.
Discussion
As a preliminary matter, we consider it appropriate to
address the propriety of the statutory basis for the appealed
rejection inasmuch as the examiner has cited no authority
explicitly recognizing § 171 as the appropriate statutory
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