Appeal No. 99-1010
Application 29/062,011
relied upon, we are constrained to reverse the outstanding
rejection under 35 U.S.C. § 103.
Although we would tend to agree with the examiner's view
that the four holes in the neck portion may be characterized
as de minimus in context of the overall design as a whole when
taken in light of the similar neck portion in Carder, the
examiner's recognition that the base portion of the claimed
hanging flower pot is not taught or suggested at all in the
prior art cannot be rationalized away. At page 6 of the
answer the examiner asserts that this opening in the base
portion of the claimed hanging flower pot would have been
obvious because “this is a typical circular hole in the base
of a flower pot, standard in the art
of flower containers.” This approach is also fatal to the
examiner's position. According to a utility application
standard for obviousness, we observe that the examiner's
rationale may have merit. However, in a design application
context such general design concepts are inappropriate. The
examiner's evidentiary void can not be filled by a
conceptualized approach. We have no indication, that is, no
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