Appeal No. 1998-2173
Application No. 08/829,620
complete statement of appellants’ arguments can be found in
the brief (Paper No. 18, filed January 2, 1998).
OPINION
We begin our analysis by pointing out that the standard
for evaluating the patentability of a design is whether it
would have
been obvious to a designer of ordinary skill in the articles
involved. See In re Nalbandian, 661 F.2d 1214, 1216, 211 USPQ
782, 784 (CCPA 1981). In rejecting a claim to an ornamental
design under 35 U.S.C. § 103, the examiner must supply a
primary or basic reference that bears a substantially
identical visual appearance to the claimed design. In re
Harvey, 12 F.3d 1061, 1063, 29 USPQ2d 1206, 1208 (Fed Cir.
1993). That is, there must be a reference, a something in
existence, the design character-istics of which are basically
the same as the claimed design; once a reference meets this
test, reference features may reasonably be interchanged with
or added from those in other pertinent references. In re
Rosen, 673 F.2d 388, 391, 213 USPQ 347, 350 (CCPA 1982).
The examiner concluded that Bird constitutes a sufficient
3
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007