Appeal No. 99-1028
Application 29/067,859
thumb and four-finger pockets. The front and rear surfaces of
the
glove are depicted in Figures 2-5 as being flat, except where
the
front and rear sides converge along the sides and top to form
a uniform seam or trim. As depicted in Figure 1, the lower
portion of the glove flares outwardly in a fairly symmetrical
manner.
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, 1216,
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 primary or basic reference that bears a substantially
identical visual appearance to the claimed design. In re
Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed Cir.
1993). That is, there must be a reference, a something in
existence, the design character-istics of which are basically
3
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