Appeal No. 1999-2020
Application D-29/058,031
art as shown by the radial distance in Figures 1 and 2 of
Benne. That is, appellants' design merely exposes the
underlying prior art transparent nature of the substrate on
which the claimed design and the admitted and known prior art
designs in Benne are illustrated.
On the other hand, we observe that the Board reversed a
rejection under 35 U.S.C. § 103 where the claimed design was
made of transparent material but which had roughened surfaces
which were determined to produce the unobvious claimed
ornamental appearance on its edges in Ex parte Widdowson, 195
USPQ 463, 464 (Bd. App. 1976). The Board also agreed with the
examiner “that use of a transparent material would be prima
facie obvious since a designer of ordinary skill could
reasonably be expected to visualize in advance what ornamental
appearance the card stand of the Clawson patent would have if
made of transparent members.”
As noted earlier, even though we recognize as urged by
appellants that Benne generally indicates that the A region of
Figures 1 and 2 may be considered as generally not
transparent, the earlier noted portions of Benne indicate that
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