Appeal No. 99-1010
Application 29/062,011
pot since these features are characterized as being functional
within
35 U.S.C. § 171. Inasmuch as there is no outstanding
rejection before us of the design claim on appeal on
functionality grounds, the examiner's reasoning is misplaced.
Moreover, the examiner's reasoning as to this improper
approach does not assert that the design as a whole was
primarily functional.
As to these same two aspects of the claimed design, the
examiner admits that the Carder vase does not teach or show
either of them. At the bottom of page 3 of the answer, the
examiner states that “with only a single perspective view of
the Carder vase to rely upon, the exact shape of the vase
cannot be determined as could be done with additional
elevational or sectional views.” Similarly, the examiner
admits at the top of page 4 that “Carder does not disclose the
four small circular openings that are equally spaced around
the upper portion of the neck, nor does it disclose an opening
in the base of the vase.” On the basis of these admissions,
and in view of the fact that no additional prior art has been
4
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Last modified: November 3, 2007