Appeal No. 99-1028
Application 29/067,859
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. In re
Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
Initially, we note that there seems to be some confusion
as to the figure in O'Connell relied on by the examiner as
being the
"something in existence, the design characteristics of which
are
basically the same as the claimed design." Appellant
understands the "something" to be the mitten shown in
O'Connell's Figure 5 (brief, page 2 and Exhibit I filed August
5, 1998). The examiner, on the other hand, relies on the
"mitten" shown in O'Connell's Figure 1 (answer, page 4 and
Exhibit A). In fact, the examiner acknowledges that what is
shown in O'Connell's Figure 5 is a one finger mitten having a
thumb pocket, an index finger pocket and a separate three-
finger pocket. The examiner also states that since she is
relying on a four-finger mitten, the appellant's argument
concerning O'Connell's Figure 5 is moot (answer, page 5).
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