Appeal No. 1999-2020
Application D-29/058,031
be considered a color. In re Cohn, 80 F.2d 65, 27 USPQ 412
(CCPA 1935) concerns a design consisting of a cellulosic
ribbon, with a preferably transparent center portion; the
edges of the ribbon were said to be a different color than the
center portion and may be either transparent, translucent, or
opaque. In applying prior art the court observed that
alternating stripes of colors arranged in the manner claimed
were sufficiently shown by the applied prior art. Novelty was
alleged to be in the appearance of the transparent ribbon with
colored edges. As such, it was contended that such a design
was entirely different in appearance from anything heretofore
shown by the art. The court observed at 27 USPQ 413 that:
It cannot be successfully argued that patentability
of a design may rest on color alone.
The court concluded its discussion as follows:
The fact that the design here presented shows a
transparent portion rather than a stripe of
different color, as it seems to us, creates no
patentable novelty in the design. The fact that the
material upon which the design is placed is in this
case transparent, while it may create a more
pleasing and beautiful effect, is indistinguishable
in principle from a case where the material upon
which the design was placed is translucent or
opaque.
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