Appeal No. 1999-1569
Application 29/021,723
1022, 140 USPQ at 655 (“Neither does it suffice to argue, as
appellants do, that the ribs and grooves could have been less
gracefully arranged than they are in their actual ‘balanced
relationship.’ If obviousness enters into this case, it is at
this point. If it is desired to employ a groove for
flexibility and three concentric fibs to make a good seal on a
flat drum head, what is more obvious than to arrange them with
approximately equal spacing, as was done? But it was done
without thought of ornament. The creation or origination of an
ornamental design does not reside in the mere avoidance of
dissymmetry.”)
However, the examiner has not made such a finding on the
record, which would provide a “good case” that the claimed
design was primarily functional, cf. Carletti, 328 F.2d at
1021,
140 USPQ at 654, and appellant has not had an opportunity to
respond to such a finding. Cf. In re Kronig, 539 F.2d 1300,
1302-03, 190 USPQ 425, 426-427 (CCPA 1976); In re Boon, 439
F.2d 724, 727-28, 169 USPQ 231, 234 (CCPA 1971). Thus, on
this record, the ground of rejection as stated by the examiner
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