Appeal No. 2000-0224 Page 4
Application No. 29/081,424
concept , the examiner (Paper No. 3, page 2) has determined that the above identified3
embodiments present overall appearances that are not distinct from one another and, thus, has
not required a restriction of the application to one of the embodiments. While the appellant
(Paper No. 4, page 2, and paragraph 2 of the Sanders declaration attached to Paper No. 4)
refers to the four disclosed embodiments as being "visually distinct from each other," the
appellant has not directly traversed this determination by the examiner or requested
reconsideration thereof. Consequently, the appealed claim is broad in the sense that the
unpatentability of any embodiment presented would defeat the claim. In reviewing the4
examiner's rejection of the claim under 35 U.S.C. § 103, we shall focus our attention on the
embodiment of Figures 1-6, which most closely resembles the prior art pipes relied upon by the
examiner.
Stokes illustrates two pipe sections, each identified by the reference numeral 31,
connected by a fitting. These pipe sections serve as a liquid lifting pipe to deliver fuel from a
main tank 30 to a fuel chamber 15 of a carburetor for an internal combustion engine. One of
the pipe sections 31 runs from the "main tank" 30 to the connection fitting and the other pipe
section 31 runs from the connection fitting to the "fuel chamber" 15. On page 2 of the final
rejection (Paper No. 5), the examiner states that "only the L-shaped portion of the pipe that
3In re Rubinfield, 270 F.2d 391, 396, 123 USPQ 210, 214 (CCPA 1959), cert. denied, 362 U.S. 903 (1960)
4See Ex parte Appeal No. 315-40, 152 USPQ 71, 72 (Bd. App. 1965).
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