Appeal No. 1999-1568 Page 4
Application No. 29/063,397
reference (answer, pp. 2 & 3). The appellants argue (brief,
pp. 6-7) that the tunnel of Morris does not have the basic
design characteristics as the claimed design. We agree with
the examiner that Morris is a basic design reference.
At this point, we note that once such a basic design
reference is found, other references may be used to modify it
to create a design that has the same overall visual appearance
as the claimed design. See In re Harvey, 12 F.3d at 1063, 29
USPQ2d at 1208. These secondary references may only be used
to modify the basic design reference if they are so related to
the basic design reference that the appearance of certain
ornamental features in one would have suggested the
application of those features to the other. See In re Borden,
90 F.3d 1570, 1574, 39 USPQ2d 1524, 1526 (Fed. Cir. 1996).
However, such modifications cannot destroy fundamental
characteristics of the basic design reference. See In re
Rosen, supra. Thus, the focus in a design patent obviousness
inquiry should be on visual appearances rather than design
concepts. See In re Harvey, 12 F.3d at 1064, 29 USPQ2d at
1208.
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