Appeal No. 1997-1343
Application 29/039,800
which the length of the article is undefined. We would infer from this disclosure that article #1623
would also be shown similarly as a length that is undefined. Thus, we fail to find that Dahlstrom
discloses every element of Appellants' claim. Therefore, we will not sustain the Examiner's rejection
under 35 U.S.C. § 102 of the sole claim.
In regard to the rejection under 35 U.S.C. § 103, Appellants argue on page 9 of the brief that
a designer of weighing platforms for scales would not be motivated to consider the design of the
elongated clip for the bead trim shown as article 1623 of Dahlstrom in designing a weighing platform.
On pages 5 and 6 of the answer, the Examiner responds by stating that one of ordinary skill in the art
would look at extruded members of prior art since the claimed design appears to be nothing more than
an extruded sheet of metal. The Examiner argues that Appellants have failed to set forth a convincing
argument of why Dahlstrom is non-analogous art.
The instant claim is for a "ornamental design for a weighing platform for a scale as shown
and described" (emphasis ours). "In design cases we will consider that the fictitious person identified in
§ 103 as 'one of ordinary skill in the art' to be the designer of ordinary capability who designs articles of
the type presented in the application." In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ 782,
784 (CCPA 1981). "This approach is consistent with Graham v. John Deere Co., 383 U.S. 1, 148
USPQ 459 (1966), which requires that the level of ordinary skill in the pertinent art be determined."
Id.
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