Appeal No. 1999-0356
Application 29/050,057
The appellants argue [brief, page 7] that ”the Final
Action admits the left side wall of the claimed design is
different from that in Taniguchi.” The appellants further
argue [id. 8] that ”[i]n order for the differences to be
obvious, there must be some
motivation to make the change; the motivation can be in the
form of a secondary reference or within the general knowledge
of the designer who designs articles of the type at issue.”
The appellants contend that “[the Office Action offers no
motivation for a designer to modify the reference in a manner
which would yield the claimed invention.”
We next review the applicable laws and cases. “In
determining the patentability of a design, it is the overall
appearance, the visual effect as a whole of the design, which
must be taken into consideration.” See In re Rosen, 673 F.2d
388, 390, 213 USPQ 347, 349 (CCPA 1982). Where the inquiry is
to be made under 35 U.S.C. § 103, the proper standard is
whether the design would have been obvious to a designer of
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