Appeal No. 1999-1569
Application 29/021,723
In response to a request for information (Paper No. 2),
the appellant submitted material (Paper No. 3) indicating that
a combine platform auger finger guide is an article of
manufacture which is adapted to be mounted on the tubular wall
of a combine platform auger to guide crop-engaging fingers
that are mounted within and movable through the wall.
The claim stands rejected under 35 U.S.C. § 171 as being
directed to subject matter which is non-statutory because it
lacks ornamentality.
Under § 171, a design patent may be granted only for a
new, original and ornamental design. When a configuration is
the result of functional considerations only, the resulting
design is not patentable as an ornamental design for the
simple reason that it is not ornamental. In re Carletti, 328
F.2d 1020, 1021-22, 140 USPQ 653, 654 (CCPA 1964). In other
words, if a design is primarily functional rather than
primarily ornamental, it cannot be patented. See L.A. Gear,
Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123, 25 USPQ2d
1913, 1917 (Fed. Cir.), cert. denied, 114 S.Ct. 291 (1993);
3
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007