Appeal No. 1995-4961
Application No. 29/014,077
REMAND
We remand this application to the examiner for appropriate
action. Our review of the record indicates that the French Pim
Pam set (1900) and a patent drawing designated as 990394
submitted by appellant appear to illustrate a racquet having
“design characteristics which are basically the same as the
claimed design.” Upon return of this application, the examiner
is to determine whether these drawings, together with Carlton and
Fischer, would have rendered the claimed subject matter prima
facie obvious.
Once the examiner determines that the claimed subject matter
would have been prima facie obvious in view of the prior art
mentioned above, the examiner must also determine whether it is
rebutted by the secondary evidence proffered by appellant. In
this regard, we note that as a rebuttal to the prima facie case
of obviousness, appellant relies on declarations of Peter Maxton,
Timothy Mott, Christopher Charles Hughes, Robert B. Smith, and
Stephen Davis, and testimony and statements given in a trial or
before a trial. See, e.g., Brief, pages 10-14 and 16-28. The
declarations and testimonies are relied upon to show commercial
success, copying by others and the perspective of the designer of
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