Appeal No. 2000-0224 Page 5
Application No. 29/081,424
runs from the fuel tank to the connection fitting was intended by the examiner to be considered
the primary reference to Stokes." While it is apparent from this statement that the examiner is
relying on only one of the two pipe sections 31, given the examiner's use of terminology ("fuel
tank") which differs from that used by Stokes ("main tank" and "fuel chamber") and the fact
that both pipe sections comprise two straight legs and a bend to form an L-shaped portion, it is
not clear to us which of the two sections 31 forms the basis of the examiner's rejection. Thus,
we shall view each of the pipe sections independently to see if either forms a proper basis for
the examiner's rejection under 35 U.S.C. § 103.
The test for determining obviousness of a claimed design under 35 U.S.C. § 103 is
whether the design would have been obvious to a designer of ordinary skill who designs
articles of the type involved. See In re Carter, 673 F.2d 1378, 1380, 213 USPQ 625, 626
(CCPA 1982) and In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782, 784 (CCPA
1981). The appellant's design lies in the realm of designers of liquid and sediment collectors.
In order to support a holding of obviousness under 35 U.S.C. § 103, there must be a
reference, a something in existence, the design characteristics of which are basically the same
as the claimed design. Such a reference is necessary whether the holding is based on the basic
reference alone or on the basic reference in view of modifications suggested by secondary
references. See In re Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
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