Appeal No. 2000-0543 Page 3
Application No. 29/066,640
We reverse.
In order to establish an anticipation, under 35 U.S.C.
102, of a claimed design, the examiner must demonstrate that a
prior art reference describes subject matter which is identical
in all material aspects of the claimed design. Hupp v. Siroflex
of America Inc., 122 F.3d 1456, 1459, 43USPQ2d 1887, 1890 (Fed.
Cir. 1997).
Accordingly, we look to the sameness between the toy block
design of Wright and the speaker design of the instant
invention in order to determine the appropriateness of the
examiner’s rejection under 35 U.S.C. 102.
We do not view the speaker design of the instant invention
and the toy block design of Wright to be identical in all
material aspects because the feet depicted on the former are a
material part of the claimed design whereas the toy block
design of Wright has no such feet. The examiner may not
consider these feet to be “material” but we disagree. The
examiner calls the difference in feet to be “de minimus” in
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