Ex Parte DAVIS - Page 5

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

               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           


Page:  Previous  1  2  3  4  5  6  7  8  9  Next 

Last modified: November 3, 2007