Appeal No. 2000-1348
Application No. 29/092,024
present adjacent the outer edges of the innermost slots (see
Stadtmauer’s figure 7). The prevailing appearance in
Stadtmauer is one of uniform slots extending through and
confined within front and back surfaces of the panel 25.
Based on the relative simplicity of the claimed design as a
whole, and the distinctive visual effect of appellant’s slots
as compared to the visual effect of Stadtmauer’s slots, the
examiner’s conclusion that the visual effect of the more
complex slot construction of appellant’s design is
insignificant and minor such that the claimed design and the
modified Stadtmauer design would be viewed by the ordinarily
skilled designer as being mere manifestations of the same
design is not well taken in the absence of some evidence to
support the examiner’s position. In that no other reference
evidence has been cited by the examiner to support this
position, the examiner has failed to provide a sufficient
factual basis to support a conclusion of obviousness. See In
re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967),
cert. denied, 389 U.S. 1057 (1968).
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