Appeal No. 99-1018
Application No. 29/054,175
We begin our analysis by pointing out that the standard
for evaluating the patentability of a design is whether it
would have been obvious to a designer of ordinary skill in the
articles involved. See In re Nalbandian, 661 F.2d 1214, 1215,
211 USPQ 782, 784 (CCPA 1981). In rejecting a claim to an
ornamental design under 35 U.S.C. § 103, the examiner must
supply a basic design reference, i.e. 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 this test, reference features
may reasonably be interchanged with or added from those in
other pertinent references. See In re Rosen, 673 F.2d 388,
391, 213 USPQ 347, 350 (CCPA 1982).
As we interpret the rejection, the examiner is of the
view that Minitalus constitutes a Rosen reference because it
shows a retaining block wall “similar in appearance” to the
claimed design “except for the three beveled edges.” The
examiner concludes, however, that “[i]t would have been
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