Appeal No. 1999-0410
Application 29/063,883
Both the photographs (Figures 1 and 2) and the narrative
description in the specification are incorporated into the
present design claim by appellant’s use in the claim of the
language “as shown and described.” Thus, the groupings of the
plurality of embossments which purportedly provide “circular
visual effects” as described on page 2 of appellant’s
specification are a part of the claimed design. Our problem
arises because we are at a loss to understand exactly what
these “circular visual effects” are, since we do not see any
such “circular visual effects” in the photographs (Figures 1
and 2) as originally filed or in the new photographs filed on
December 5, 1997. Even the examiner has characterized the
purported circular visual effects as being “so subtle as to be
unnoticeable” (answer, page 7) and is on record as indicating
that “[t]he only clear pattern discernible in the design is a
wavy or linear configuration to the pattern.” Thus, it
appears to us that issues under 35 U.S.C. § 112, first and
second paragraphs, have not yet been adequately resolved in
this case.
A second point for consideration by the examiner is
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