Appeal No. 1999-1569
Application 29/021,723
each instance, and, of course, the contour of each augur drum.
This evidence would reasonably appear to provide the
basis for a finding that prima facie the claimed design when
viewed in its entirety is primarily functional in that it is
primarily adapted for a specific auger finger guide
application, rather than an alternative or arbitrary design
intended for use with a number of different auger finger
applications and created for the purpose of ornamenting. Cf.
Best Lock, 94 F.2d at 1566,
40 USPQ2d at 1050; Power Controls, 806 F.2d at 239-40, 231
USPQ at 778; Carletti, supra; cf. also L.A. Gear, supra.
Indeed, the evidence of record would reasonably provide the
basis for the examiner to inquire into appellant’s reasoning
behind the design in its entirety and for appellant to submit
evidence that the design is primarily ornamental. See Power
Controls, supra; Carletti, 328 F.2d at 1021, 140 USPQ at 654;
see also Best Lock, supra. As noted above, on this record,
appellant has testified that the “outline of the head is an
arbitrary shape” which, of course, involves less than the
overall appearance of the article. Cf. Carletti, 328 F.2d at
12
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