Appeal No. 2000-0244
Application No. 29/069,936
would have
been obvious to a designer of ordinary skill in the art
involved. See In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ
782, 784 (CCPA 1981). In rejecting a claim to an ornamental
design under 35 U.S.C. § 103, the examiner must supply a
primary or basic reference that bears a substantially
identical visual appearance to the claimed design. In re
Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed Cir.
1993). That is, there must be a reference, a something in
existence, the design characteristics of which are basically
the same as the claimed design; once a reference meets this
test, reference features may reasonably be interchanged with
or added to those in other pertinent references. In re Rosen,
673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
The examiner concluded that Guillerm constitutes a
sufficient “Rosen” reference. The appellant argues that
Guillerm does not. We need not consider this issue, however,
because even assuming that Guillerm is a sufficient "Rosen"
reference which discloses essentially the same basic design as
that of the appellant, we reject the examiner’s position that
an ordinary designer would have been motivated to provide an
3
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007