Ex Parte DAVIS - Page 3

          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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