Appeal No. 1999-2020
Application D-29/058,031
matted surface to any radial extent thereof generally visible
on the other side of the disk in the manner claimed. Again,
it is emphasized that the
same radial extent to which the transparent region is visible
in the claimed invention is shown to exist in the prior art
Figures 1 and 2 of Benne.
The basic rubric of Cohn that patentability of a design
may not rest on color alone is repeated and followed in In re
Iknayan, 274 F.2d 943, 944, 124 USPQ 507, 508 (CCPA 1960).
The court went on to indicate that a design claim
distinguishing over a reference only on the basis of coloring
was properly rejected since selection of a different color
would not have provided any basic alteration or unexpected
appearance. It is further emphasized here that the presently
claimed design on appeal presents no different shaped pre-
recorded optical disk in the claim on appeal than that
admitted and known in the prior art represented by Benne.
Appellants' claimed design merely exposes what is already
there anyway to the same extent known to exist in the prior
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