Appeal No. 99-0837
Application No. 29/074,268
rejections under review, but no specific statutory basis for
that rejection was stated. The Wise court nevertheless
recognized that a mere simulation of a naturally occurring
form, namely a tear drop, was not a patentable design. Id.
340 F.2d at 938, 144 USPQ at 355-356.
The issue of originality also was involved in In re
Smith, 77 F.2d 513, 25 USPQ 359 (CCPA 1935) (hereinafter Smith
I) and in In re Smith, 77 F.2d 514, 25 USPQ 360 (CCPA 1935)
(hereinafter Smith II). However, both of these cases were
decided under the Revised Statute § 4929, May 9, 1902, ch. 783
(hereinafter the 1902 Act), not the 1952 Patent Act. Both
Smith I and Smith II are nevertheless pertinent to our inquiry
inasmuch as the relevant provision requiring a design to be
“new, original and ornamental” in the 1902 Act, was reenacted
in 35 U.S.C. § 73 (1946) and again in 35 U.S.C. § 171. See
Tayama, at 1616.
In both Smith I and Smith II, the design was for a naked
baby doll having natural or life-like characteristics. See
e.g., Smith II, 77 F.2d at 514, 25 USPQ at 361. In both
cases, the examiner’s rejection was based on the determination
that the design was substantially nothing more than a mere
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