Appeal No. 1999-0410
Application 29/063,883
not required to support a rejection for lack of novelty under
35 U.S.C. § 102, however, the reference must be virtually
identical to the claimed design.
In the present case, when we view appellant’s Figures 1
and 2 alongside Figure 1 of Satas, we are unable to agree with
the examiner (answer, page 6) that the claimed design and that
of the sheet material in Satas Figure 1 are “so strikingly
similar that the claimed design would indeed be seen by an
ordinary observer as a mere modification of the Satas design,
and not as different.” In our opinion, the visual impression
created by the claimed design as seen in Figures 1 and 2 of
the present application is significantly different from that
created when viewing the embossed sheet material seen in Satas
Figure 1. While the sheet material of Satas Figure 1 has an
embossed surface that includes relatively large distinct
generally circular areas that are apparently coalesced nodules
and filamentary strands or fibers of the synthetic polymer
used in making the sheet material, the claimed design has what
appears to be an embossed surface that is made of very small
embossments arranged in an entirely different manner than the
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