Appeal No. 99-0837
Application No. 29/074,268
parting line dividing the illustrated drinking glass in upper
and lower hemispheres, the overall truncated oval shape of the
illustrated design, the symmetrical arrangement of the three
depressions of the same size and shape near the extremity of
the upper hemisphere, and the lack of hairy or fibrous
projections found on the natural form of a coconut.
The examiner’s dismissal of such distinctions as the
circumferential parting line and the flat bottom as being
“functional features” (see page 5 of the answer) is
unwarranted. A similar position was advanced and rejected in
L. A. Gear Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 25
USPQ2d 1913 (Fed. Cir. 1993). There, the court stated at
1123, 25 USPQ2d at 1917:
A design patent is directed to the appearance of
an article of manufacture. An article of
manufacture necessarily serves a utilitarian
purpose, and the design of a useful article is
deemed to be functional when the appearance of the
claimed design is “dictated by” the use or purpose
of the article. In re Carletti, 328 F.2d 1020,
1022, 140 USPQ 653, 654 (CCPA 1964); Power Controls
Corp. v. Hybrinetics, Inc., 806 F.2d 234, 238, 231
USPQ 774, 777 (Fed. Cir. 1986) (patented design must
be primarily ornamental).
. . .[T]he utility of each of the various elements
that comprise the design is not the relevant inquiry
with respect to a design patent. In determining
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