Appeal No. 2000-0658
Application 29/084,939
ordinary skill of the articles involved. In re Nalbandian,
661 F.2d 1214, 1216, 211 USPQ 782, 784 (CCPA 1981). As a
starting point, there must be a reference, a something in
existence, the design characteristics of which are basically
the same as those of the claimed design in order to support a
holding of obviousness. 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. In re Harvey, 12 F.3d 1061, 1063, 29
USPQ2d 1206, 1208 (Fed. Cir. 1993); In re Rosen, supra. De
minimis changes which would have been well within the skill of
an ordinary designer in the art do not create a patentably
distinct design. In re Carter, 673 F.2d 1378, 1380, 213 USPQ
625, 626 (CCPA 1982) (see also In re Cooper, 480 F.2d 900,
902, 178 USPQ 406, 408 (CCPA 1973); and In re Lapworth, 451
F.2d 1094, 1096, 172 USPQ 129, 131 (CCPA 1971)).
The examiner’s determination (see page 4 in the answer,
Paper No. 11) that the bat design disclosed by Lo satisfies
the so-called Rosen requirement for something in existence
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