Appeal No. 1999-1569
Application 29/021,723
Avia Group Int'l, Inc. v. L.A. Gear Cal., Inc.,
853 F.2d 1557, 1563, 7 USPQ2d 1548, 1553 (Fed. Cir. 1988);
Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 238,
231 USPQ 774, 777 (Fed. Cir. 1986).
In the present case, the examiner submits that the
claimed design for a combine platform auger finger guide lacks
ornamentality because
[a]rticles of this type would seem to be devised to
satisfy purely structural and mechanical
requirements as well. No concern for ornamental
value may be ascribed to its functional features. A
potential purchaser and user of the claimed article
would not select it on the basis of any
consideration other than utility [first Office
action, Paper No. 4, page 2].
The examiner further explains that “due to the title, the
utilitarian configuration, and lack of ornamental features of
the article, . . . it was proper to give the rejection under
35 U.S.C. 171 as lacking ornamentality based [on] the
examiner’s knowledge of [the] art” (examiner’s answer, Paper
No. 13,
page 2).
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