Appeal No. 1995-4961
Application No. 29/014,077
the same' as the claimed design.” In re Harvey, 12 F.3d 1061,
1063, 29 USPQ2d 1206, 1208 (Fed. Cir. 1993); In re Rosen,
673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982). The examiner
must then explain why the difference, if any, between the prior
art design and the design for which patent protection is sought
would have been obvious to, or would have been seen as de minimis
by, the ordinary designer. In re Carter, 673 F.2d 1378, 1380,
213 USPQ 625, 626 (CCPA 1982); In re Nalbandian, 661 F.2d 1214,
1217, 211 USPQ 782, 785 (CCPA 1981). In assessing obviousness,
the design involved must be considered as a whole viewed from the
perspective of the designer of ordinary skill of the articles
involved. Rosen, 673 F.2d at 391, 213 USPQ at 349.
The examiner states (Answer, page 3) that:
It would have been obvious to one of ordinary
skill in the art at the time the invention was made
to have formed the basic reference racquet [described
in Gagon] without a throat piece and to have strung
the racquet into the throat as shown and suggested
by the ancillary Carlton and page 78 Tennis magazine
references. Moreover, said modification would have
resulted in an overall appearance strikingly similar
to the claimed design and no patentable ornamental
advance is seen thereover.
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