Ex Parte DAVIS - Page 4



          Appeal No. 1995-4961                                                        
          Application No. 29/014,077                                                  

          We find, however, that Gagon does not constitute “a basic                   
          reference,” for it fails to illustrate “design characteristics              
          which are basically the same as the claimed design.”  In that               
          regard, we note that the tennis racquet shown in Gagon has a head           
          defining a round stringing design, rather than the claimed tear             
          drop stringing design.  The round stringing area is formed by               
          providing a throat piece that is not present in the claimed                 
          squash racquet design.  In addition to these significant                    
          differences in overall appearance, the examiner has not viewed              
          the tennis racquet described in Gagon from the perspective of the           
          designer of ordinary skill of the articles involved.  See Answer,           
          page 4.  According to appellant, the Rule 132 declaration of                
          Davis and testimony of Mr. Maxton and Mr. Morgan establish that             
          the tennis racquet illustrated in Gagon would not have been                 
          viewed in the same manner as the examiner from the perspective of           
          the designer of ordinary skill.  See Brief, pages 10-15.  The               
          examiner, however, improperly ignores such evidence without                 
          explaining the deficiency of the declaration and testimony.  See            
          Answer, page 4.  Therefore, we conclude that the examiner has not           
          established a prima facie case of obviousness.  Accordingly, we             
          reverse the examiner’s  103 rejection of the sole claim in this            
          application.                                                                
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