Appeal No. 2000-0543 Page 4
Application No. 29/066,640
nature and one which does not provide an overall appearance
that is patentably distinct over the prior art. Thus, the
examiner admits to a difference but makes the rejection under
35 U.S.C. 102, rather than 103.
In the instant case, the toy block design of Wright cannot
anticipate the instant claimed design since the former does not
depict the feet which form part of the latter’s design, which
we regard as a material aspect of the claimed design.
While we need not reach the “analogous art” issue since it
is our view that Wright fails to disclose all of the elements
of the claimed design in any event, we would note that the
question of whether or not a prior art reference is
nonanalogous art is simply not germane in cases of a design
claim, or, for that matter, of a utility claim, which has been
rejected as being anticipated under 35 U.S.C. 102. Either the
reference discloses all that is claimed, or it does not. The
question of nonanalogous art has a bearing on the issue of
obviousness under 35 U.S.C. 103 but we do not have such an
issue before us.
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