Appeal No. 1999-1569
Application 29/021,723
I find that the issue of whether the claimed design of
the combine platform auger finger guide encompassed by the
claim on appeal, when viewed in its entirety, is primarily
functional, has not been developed on the record by either the
examiner or appellant. The examiner cites her “knowledge of
the art” as the basis for alleging that the claimed design has
“utilitarian configuration, and lack of ornamental features,”
and thus contends that the burden has therefore shifted to
appellant to establish by testimony that the design was
created “for primarily ornamental purposes” (answer, pages 2-
3). For his part, appellant has testified, inter alia, that
(...continued)
filed April 1, 1996 (Paper No. 11½; pages 3-4), whether the
claimed design is “ornamental” within the meaning of § 171 is
not a matter of aesthetics. See Seiko Epson, 190 F.3d at
1368,
52 USPQ2d at 1017-18 (“Nor need the design be aesthetically
pleasing. . . . The design may contribute distinctness or
consumer recognition to the design, but an absence of artistic
merit does not mean that the design is purely functional.”);
Carletti, supra (“The appearance of appellants’ gasket seems
as much dictated by functional considerations as is the
appearance of a piece of rope, which, too, has ribs and
grooves nicely arranged. The fact that it is attractive or
pleasant to behold is not enough. Many well-constructed
articles of manufacture whose configurations are dictated
solely by function are pleasing to look upon, for example, a
hex-nut, a ball bearing, a golf club, or a fishing rod, the
pleasure depending on one’s interests.”).
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