Appeal No. 1999-0356
Application 29/050,057
inappropriate. See In re Cho, 813 F.2d 378, 382, 1 USPQ2d
1662, 1663 (Fed. Cir. 1987).
In the instant case, whereas we agree with the Examiner
that there is a similarity between the designs of the
Appellants and the reference, however, the two designs are
substantially different in appearance. Specifically, Figs. 7
to 9 of the claimed design look substantially different from
the design of the second embodiment of Taniguchi (Figs. 8 to
14) which is employed in the final rejection. For example,
the left side of the claimed design (Figs. 7 and 8) is
provided with special
curves for a particular appearance whereas the corresponding
left side of Taniguchi’s design (Fig. 14) has no hint of any
curve, but instead is provided with a uniformly sloping planar
surface. We are of the view that the examiner has not provided
any evidence, in the form of either a secondary reference or a
logical reasoning, which would make the claimed design
obvious. Furthermore, the Federal Circuit has stated that
“[the] mere fact that the prior art may be modified in the
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