Appeal No. 2000-1221
Application No. 29/070,030
the type involved. See In re Carter, 673 F.2d 1378, 1380, 213
USPQ 625, 626 (CCPA 1982) and In re Nalbandian, 661 F.2d 1214,
1216, 211 USPQ 782, 784 (CCPA 1981). The appellant's design
lies in the realm of designers of tires.
In order to support a holding of obviousness under 35
U.S.C. § 103, there must be a reference, a something in
existence, the
design characteristics of which are basically the same as the
claimed design. Such a reference is necessary whether the
holding is based on the basic reference alone or on the basic
reference in view of modifications suggested by secondary
references. See In re Rosen, 673 F.2d 388, 391, 213 USPQ 347,
350 (CCPA 1982).
The appellant does not argue that the design
characteristics of the tire of Bonko '923 are not basically
the same as the claimed design on appeal. In this regard, we
note that the tire of Bonko '923, like the claimed design, is
a directional tire having a tread with a plurality of
circumferentially spaced outer raised portions of the same
shape and orientation as the outer raised portions of the
claimed design on appeal and a plurality of circumferentially
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