Appeal No. 1999-1569
Application 29/021,723
WARREN, Administrative Patent Judge, Concurring:
I concur with the panel’s decision to reverse the
decision of the examiner based on the record before us for the
following reasons.
“The ‘ornamental’ requirement of [35 U.S.C. § 171] . . .
means that the design must not be governed solely by function,
i.e., that this is not the only possible form of the article
that could perform its function. . . . A design patent is for
a useful article, but patentability is based on the design of
the article, not the use.” Seiko Epson Corp. v. Nu-Kote
International Inc., 190 F.3d 1360, 1368, 52 USPQ2d 1011, 1017
(Fed. Cir. 1999), citing L.A. Gear Inc. v. Thom McAn Shoe Co.,
988 F.2d 1117, 1123, 25 USPQ2d 1913, 1917 (Fed. Cir. 1993);
see also Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563,
1566,
40 USPQ2d 1048, 1049-50 (Fed. Cir. 1996); Power Controls Corp.
v. Hybrinetics, Inc., 806 F.2d 234, 238-40, 231 USPQ 774, 777-
78 (Fed. Cir. 1986); In re Carletti, 328 F.2d 1020, 1021-22,
140 USPQ 653, 654 (CCPA 1964) (“[I]t has long been settled
that when a configuration is the result of functional
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