Appeal No. 99-0838
Application 29/064,666
OPINION
Having carefully considered the issues raised in this appeal in light of the applied prior art, the
examiner's remarks and appellants’ arguments, it is our conclusion that the examiner's rejection of the
present design claim under 35 U.S.C. § 103 is not sustainable. Our reasons for this determination
follow.
In determining the patentability of a design, it is the overall appearance, the visual effect as a
whole of the design, which must be taken into consideration. See In re Rosen, 673 F.2d 388, 390,
213 USPQ 347, 349 (CCPA 1982). Where the inquiry is to be made under 35 U.S.C. § 103, the
proper standard is whether the design would have been obvious to a designer of ordinary skill who
designs articles of the type involved. See In re Nalbandian, 661 F.2d 1214, 211 USPQ 782 (CCPA
1981). Furthermore, as a starting point when a § 103 rejection is based upon a combination of
references, there must be a reference, a "something in existence," the design characteristics of which are
basically the same as the claimed design. Once a reference meets the test of a basic design reference,
ornamental features may reasonably be interchanged with or added from those in other pertinent
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