Appeal No. 1999-0410
Application 29/063,883
large embossments seen in the material of Satas Figure 1.
Like appellant (brief, page 8), we are of the view that
because the embossment pattern as well as the sizes and shapes
of the individual embossments constituting the pattern in the
claimed design differ significantly from that seen in Figure 1
of the Satas reference, the claimed design cannot fairly be
described as a mere modification of the surface design pattern
seen in the sheet material of Satas.
Stated differently, and in accordance with the test for
novelty in designs, we are of the opinion that the ordinary
observer would view the general or ensemble appearance-effect
of the claimed design to be different from that of the surface
design seen on the sheet material depicted in Figure 1 of
Satas.
This being the case, we will not sustain the examiner's
rejection of appellant’s design claim on appeal under 35
U.S.C. § 102(b) as being anticipated by Satas.
With regard to the examiner’s rejection of the claimed
design under 35 U.S.C. § 103(a) based on Satas, we do not
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